Complainant

Respondent

Parties

Elaine  Moore

Ballymun Initiative For Third Level Education Bite

Representatives

Ms. Laura Tennyson BL instructed by Niamh Cassidy Hayes 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-00042172-001

27/01/2021

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

CA-00042173-001

27/01/2021

The Complainant commenced employment as the Programme Director for the Respondent with effect from 4th December 2017.  The Complainant alleged that difficulties arose in the employment relationship in relation to a proposed return to work following the initial lockdown due to Covid.  She raised three complaints with the Workplace relations Commission in relation to her employment with the Respondent.  Subsequent to the hearing the Complainant withdrew one of those complaints and that matter was then closed.  The two remaining complaints are as follows:

·        CA- 00042172-001

Complaint under Section 8 of the Unfair Dismissals Act, 1977-2015, 1994 alleging that she had to leave her job due to the conduct of her employer and others at work, that she was constructively dismissed from her employment.

·        CA -00042173-001

Complaint under Section 8 of the Unfair Dismissals Act, 1977-2015, 1994 alleging that she had to leave her job due to the conduct of her employer and others at work, that she was constructively dismissed from her employment.

The Complainant noted in her complaint form that she had the requisite service to advance a claim under the Unfair Dismissals Act, with a commencement date of 4th December 2017 and a termination of employment date of 7th December 2020. 

The Respondent is a registered charity which was set up in 1989 with the aim of increasing the number of children from the surrounding area to progress to Third level Education.  The Respondent is funded by the Department of Education, the Society of the St. Vincent de Paul and Dublin North- West area Partnership.  The Respondent location is based in the premises of the local comprehensive school.  The business and activities of the Respondent are overseen by a voluntary board.

Preliminary Objections:

As well as addressing the issue of the complaint which was subsequently withdrawn by the Complainant the Respondent objected to the fact that the Complainant had brought two identical claims under the Unfair Dismissals Act.

At the hearing the Complainant confirmed that the second complaint (CA -00042173-001) was a duplicate of the other complaint and that this was simply an administrative error when submitting the complaint.

On the basis that all those in attendance accepted that there was only one case to be dealt with (CA- 00042172-001), the hearing proceeded.

CA- 00042172-001

The Complainant submitted that she worked for the Respondent for three years, starting on 4th December 2017 and that she was employed as the Programme Director.  She submitted that while she was employed by the Respondent and reported to the Board of the Respondent, her work location was at the local comprehensive school and she submitted that the office within which she worked was a small room, measuring approximately 9 meters square, with no windows or ventilation.  She submitted that throughout the 3 years of her employment she was subjected to “consistent negative remarks including attempts at intimidation” most notably from the deputy Principal of the school who was also a member of the Respondent’s Board.

The Complainant submitted that during the Covid 19 pandemic the Chair and the Board made a series of agreements and promises to her that she would be working remotely and would not be returning to the physical environment of the comprehensive school. She submitted that she had commenced working remotely on 12th March 2020 and that JPOK, as Chairperson had approved the arrangement.  In June 2020 the new Chairperson, SK contacted her by phone and remarked about her not returning to the office until the pandemic was over and said that she would never be returning full-time. As part of that conversation, the Complainant submitted that she had advised the Chairperson of her intention to take annual leave in July and was advised by the Chairperson that there was no need to inform her of her annual leave arrangements, that they were her business and that she should suit herself.

The Complainant submitted that in July 2020 she and her colleague, DL met with SK (Chairperson) and ML (Secretary of Board) to discuss Covid safety issues and that SK assured the Complainant and DL that their health and safety was a priority and that they would not be returning to the school in the near future, if at all that year. She submitted that SK agreed that even if the committee were to install a number of safety measures, and they still did not feel safe, then they would not have to return. The Complainant appended a copy of the minutes of that meeting to her submission.

The Complainant submitted that in August 2020 DM prepared a draft Covid 19 safety checklist for the Board to decide upon based on advice from an external HR consultancy group and the Complainant circulated the proposed plan to the Board in advance of an upcoming meeting.  The Complainant submitted that the Board did not action the plan and it was agreed that BITE would continue to operate remotely until at least the end of term one and that the Complainant and her colleague DM would work from home.

The Complainant further submitted that at that same meeting there was a debate about providing team and biscuits to students.  The Complainant believed this could not be done safely but she submitted that SK continuously spoke over her and said it must happen. She submitted that this debate related to a hypothetical situation as it had already been agreed to continue remote working.  The Complainant submitted that at that meeting she and the Board were then advised by SK that she was seeking a support and supervision person for the Complainant.  The Complainant submitted that the named person was a friend or acquaintance of the Chair and that she was not comfortable with the proposed arrangement and that separately she had reminded SK that her contracted stated that she was to report directly to the Board. She submitted that this proposal was in relation to matters relating to FG (Board member) but that ultimately the named person withdrew so the arrangement was never implemented.

The Complainant submitted that later in August 2020 SK phoned her to discuss the tea and biscuits again and that once again she expressed her concerns that she didn’t believe this could safely be done.  She submitted that SK responded by repeatedly saying that she was “on a sticky wicket.” The Complainant submitted that SK also made several remarks about her not understanding the value of a biscuit to a disadvantaged child, which she found both personally and professionally insulting.

The Complainant submitted that around the same time another Board member (MMcC) phoned her to say that she wouldn’t be able to offer tuition to students that year due to Covid safety concerns, that she enquired how the Complainant was doing.  The Complainant submitted that she told her that she was stressed and upset about the remarks made by FG about returning physically to the workplace.  The Complainant submitted that MMcC advised her to stand her ground and not to worry that the Board would support her and that she did not need to return if she did not feel safe.

She submitted that the position changed, one September afternoon when she received a call from the Chairperson to advise her that she and the Board had decided without her that she would be returning to school. She submitted that there was no safety protocol in place although she had been trying to implement one for months. She further submitted that she did not feel that it was safe for her, her staff or her students.  The Complainant submitted that during that phone call SK sought an update on the programme and that she informed SK of lots of positive updates.  She submitted that when she advised of progress on the remote programmes SK asked her on whose authority she was acting, and once again said that the Complainant “was on a sticky wicket” with her.  The Complainant confirmed that she had been keeping the Board updated on these programmes since March 2020. In her submission the Complainant outlined how, on the same phone call SK advised her that the Board had met without her the previous evening at her request.  The Complainant submitted that she was shocked, as this had never happened before, but that SK advised her not to worry as nothing bad had been said about her.  The Complainant submitted that SK then informed her that the whole Board had agreed that she was going back to work in the school premises.

She submitted that she was subjected to a great deal of stress in relation to the matter, that she received no support from her employer and that instead there were a series of difficult meetings and exchanges following which the Chairperson and the Board members continued to make untrue allegations towards her which were “scurrilous in nature”.  She submitted that this resulted in her being brought to hospital by ambulance and that following that first hospital visit she was on certified sick leave for a two-week period.  She submitted that upon her return to work she wrote to both the Chairperson and the Board outlining her stress and concerns and explaining that she was on certified sick leave.  She submitted that she was then on a further two-week certified sick leave and was again sent to hospital by her GP.  The Complainant provided some detail in her submission in relation to her medical issues.

The Complainant submitted that in October 2020 the school posted several Halloween pictures to their Instagram account which showed staff not wearing masks or distancing and that this had caused her a great deal of worry and concern for her safety if she were to return.

The Complainant submitted that she had received an email from SK saying that she expected her to be back in work during the October mid-term and that she responded to remind SK that she had notified her early in October of her intention to take annual leave at that time.  She submitted that SK responded by saying that she must send all of her leave and notify her in writing of any days she wished to take, and the Complainant pointed out that this approach was contrary to what she had said to her back in July.  The Complainant confirmed that despite this she had no difficulty providing the information as requested.

The Complainant submitted that she received a copy of minutes of the Board meeting which was held in October without her and that she noted that the minuets stated that she was an essential worker and must return physically to the workplace.  The minutes also reflected that the Board had been informed of GL’s report and that this severely impacted her stress and anxiety.  She submitted that she emailed the committee outlining her concerns and querying the validity of the report from GL and she advised Board member of the impact it had on her health.  She submitted that she never received a response to that email.

The Complainant submitted that despite trying to resolve the situation she was left with no choice but to resign for her own safety and that of her students. She further submitted that she advised of her intention to resign on 4th December 2020and that she confirmed that intention by submitting her formal letter of resignation on 7th December 2020, giving one months’ notice of her resignation. i.e.; her last date of employment to be 7th January 2021. She confirmed, in her submission, that she had clearly stated in her resignation letter that the reason for her resignation was because she felt forced to do so due to a lack of health and safety consideration and planning.  She further submitted that there was no attempt by the Respondent to resolve the matter or to ask her to reconsider.

She submitted that on 11th December her letter and resignation were formally acknowledged by the Chairperson and her communication stated that they (the Board) agreed to her terms. The Complainant submitted that on 15th December 2020, the Chairperson sent two emails, one demanding a comprehensive handover in an unrealistic timeframe, the second stating that the Board would be taking over control of BITE from 22nd December 2020 and that she would not be staying until 7th January 2021 and must leave on 22nd December 2020.

The Complainant submitted that she had a good working relationship with the Chair and most of the Board members until she raised concerns in relation to Covid 19 and the lack of a safety plan but that after that the relationship changed.  She submitted that she was subjected to false allegations about carrying out her duties, the circulation of untrue and inaccurate minutes, refusal to address her queries and concerns, tense and stressful exchanges and forcing her to return to work on a 5-day week basis when she had an agreement with the Board in December 2019 that she worked 4 days physically present on site and one day remotely.  She submitted that the totality of this alleged behaviour resulted in her having no option but to resign her position and she pointed to the fact that the Board required her to leave earlier than her notified termination of employment date, as further evidence of the deteriorated working relationship.

The Complainant stated in her submission that she was genuinely in fear for her life, and she noted that Covid 19 constitutes an infectious disease and a biological hazard.  The Complainant outlined the details of ADJ 00028293 to support this position and submitted that it was the Respondents responsibility to ensure a safe working environment for her.

The Complainant submitted that there was no safety plan in place, that the Respondent was aware of both the physical and psychological risk to her and made no arrangement s for either risk avoidance or any adaptation of the workplace to mitigate the risks involved. She submitted that she had adapted the programme well to be able to continue to offer support to students and to deliver a remote programme during the pandemic, that she had taken reasonable steps to care for her own safety during that time but that she found herself in a position where she was no longer allowed to work from home and so was forced to resign.

In her submission the Complainant outlined how she had abided by all the grievance procedures available to her, verbally and in writing, to the Chairperson and the Board.  She submitted that she made every effort to resolve the matter, however, the Board refused to allow her to continue to work from home despite prior agreements that she would not be asked to return if she was uncomfortable and instead insisted upon her returning in the absence of a safety policy or plan and , in those circumstances, she submitted that it was reasonable for her to resign and fell that she was constructively dismissed.  In her submission she confirmed that she did not say that she would never return to the physical office, instead, she submitted that she had asked that a safety procedure be provided, and her safety concerns addressed and she pointed out that much of those events occurred during Level 5 of the pandemic.

The Law

In her submission  Complainant outlined the “contract test” for an unfair dismissal as set out in Western Excavating (ECC) Ltd v Sharp [1978] where it was found that “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 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 Complainant submitted that her employer caused significant damage to the employment relationship by failing to take her stress, stress related illness and health and safety into consideration.  She further submitted that in forcing her to return to an unsafe environment without attempting to eliminate any risk they showed that they in no way intended to be bound by the Safety, Health & Welfare at Work Act 2005, and so an essential and implied term of her contract had been breached.  The Complainant drew attention to the Adjudicator decision in WRC case ADJ 00028293 to support this position.

In her submission the Complainant also considered the question of reasonableness and again drew attention to Western Excavating (ECC) Ltd v Sharp where it was held that “if an employer 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.”  The Complainant submitted that she was put in a position that left her with no alternative but to submit her notice, having utilised all internal procedures to attempt to address her concerns and to find a resolution.

The Complainant provided copies of all documentation referred to in her submission and provided a copy of her response to the Respondents’ representative in relation to her attempts to find alternative employment following her resignation.

Witness Evidence – The Complainant

In particular, I noted the Complainant’s evidence that she had availed of all internal procedures to address her concerns.  She advised that she had been Programme Director for 3 years and that she worked out of a small office with no windows and no ventilation.  She stated that, in those circumstances she could not return to work without a safety plan. She stated that a proposal had been submitted by her colleague in August 2020 but that none of the measures contained in that proposal were put in place by the time she was expected to return to in person working.

She confirmed that she and her colleague had been working remotely but that everything changed in September 2020 when she received a phone call from SK telling her that she had to return to work.  She advised that she did set down her grievances in writing and that while there was an acknowledgement of previous agreement about working from home but that the Board members changed their minds. She stated that at the meeting to discuss her concerns she was faced with false allegations and that this occurred again at a second meeting held.  She stated that, in the absence of a safety plan or of safety measures being implemented she was left with no option but to resign in December 2020.  The Complainant drew attention to the decision in the case of ADJ 00028293 as being relevant to her own case.

The Complainant stated that she raised her concerns with the Respondent on a number of occasions, both verbally and in writing, that many third level programmes were operating remotely, that her GP considered her to be at higher risk and that within 2 weeks of her resignation there was a further lockdown which operated for many months.  She also stated that she had interviewed for a number of roles since the termination of her employment.

In summarising her position, the Complainant stated that the Respondent never made any proposal to her regarding her safe return to the workplace and never addressed issues from late 2019.  She stated that it was untrue that she never intended to go back into the workplace and that she had, in fact done so, in May/June.  She advised that she was never made aware of the plan for moving the photocopier and that she had concerns having seen the photographs posted by the school where masks and social distancing appeared to have been abandoned.  She stated that she felt very alone and isolated.

CA -00042173-001

The Complainant confirmed at hearing that this complaint was a duplicate of CA- 00042172-001

and was submitted in error.

CA- 00042172-001

The Respondent submitted that the Complainant commenced employment with the Respondent as a Programme Director in December 2017 and that she reported to the Respondent’s Board. The Complainant’s place of work was the comprehensive school premises, and she had her own office.  The Respondent submitted that they had one other employee, Mr. DM, who was employed in the role of part-time administrator. The Respondent submitted a copy of the employment contract and provided a summary of the main duties attaching to the role.

The Respondent submitted that given that BITE is an education programme based in the comprehensive school where students do not necessarily get the support they need at home and where it would not be the norm for students to progress to Third level Education, an important part of the Complainant’s role was to be present in the BITE office in the school so that the programme had a physical presence for students.  The Respondent submitted that the Complainant provided the much-needed support for participants of the programme, and that a core part of the Complainant’s role was to provide the ‘soft skills’ support to students, including encouragement and support to maintain their focus on academic achievement and to supporting those with high support needs.

The Respondent submitted that the Complainant’s decision to resign from the Respondent’s employment was premature and was done without recourse to the Respondent’s Grievance Procedure.  The Respondent further submitted that the Complainant failed to exhaust all options available to her in advance of resigning her position.

The Respondent submitted that they engaged with the Complainant throughout the period march -December 2020 and complied with their obligations towards the Complainant.

In the Respondent response to the Complainants submission to the WRC they set out the following sequence of events:

·        March 2020:

 In accordance with the prevailing public health guidance at that time, BITE began to operate remotely, and the Complainant continued to work remotely for the whole period March – 7th December 2020 when she resigned her employment.

·        March – November 2020:

The Respondent held Board/Management meetings over the course of that period and the Complainant was present at the majority of those meetings. The Respondent also held EGM’s in August and September and again the Complainant was present.

·         14th May 2020:

At a Board of Management meeting the Complainant stated that “participation…had been quite poor throughout the year and that there had been very little engagement with the remote programmes.” She also voiced her concerns at the “poor attendance in junior homework clubs” and expressed concern over “moving to remote platforms as supervised study cannot be done online. The Respondent submitted that this was an acknowledgement by the Complainant of the difficulties of BITE services being provided remotely in circumstances where a significant portion of students wouldn’t have access to a laptop at home, and where the particular cohort of students come from disadvantaged backgrounds and needed hands-on support , which they would not necessarily receive at home.

·        July 2020:

A Board Management meeting took place at which the Complainant was present and where Covid 19 safety issues were acknowledged and discussed.

·        13th August 2020:

In the context of the on-going pandemic an EGM took place, at which the Complainant was present. Mr. DM had prepared documents concerning Covid 19 safety measures based on the organisation The Wheel’s recommendations, as advised by an external HR consultancy. The Respondent submitted that the Complainant was aware of this document and had, in fact, circulated it to the Board members in advance of the meeting. The Respondent submitted that at the meeting plans for the coming academic year were discussed in the light of the pandemic and it was noted that all schools were due to re-open for physical classes in August/September.  It was decided by the meeting that BITE would continue to operate remotely until late September/early October.  It was also agreed by the Board to arrange voluntary pastoral support for the Complainant and her work colleague, Mr. DM.

·         August 2020:

Communications between the Complainant and SK throughout the month reflect that the parties were collaborating on health and safety issues including policies and procedures and that the school shared it’s covid policies and procedures in order to assist BITE. The Respondent drew particular attention to emails of 24th and 27th august where the Complainant was engaging with SK in relation to her return to work and even enquired about which return to work form should she complete.

·        September 2020:

By agreement with the Complainant SK emailed the Complainant the name of a suggested person, Ms. MP to provide pastoral care to the Complainant, and SK sent both parties and introduction email on 28th September. Following that email Ms. MP reached out to the Complainant by text to offer dates to meet with the Complainant. The Complainant responded that she had no availability for more than 10 days and they agreed to meet at the next available date. The Complainant cancelled the arranged meeting on the morning of the meeting.  Ms. MP responded by leaving the opportunity to meet available at the discretion of the Complainant, which was not availed of at the time.  Subsequently the Complainant reached out on 20th November 2020 to organise a meeting but unfortunately Ms. P’s circumstances/availability had changed and she was no longer available.

On 30th September an EGM was held at which a new auditor was appointed and the Complainant suggested a new Board member.

·        15th October 2020:

A Board meeting took place which was not attended by the Complainant as she was on certified sick leave at the time.  At the meeting it was agreed that the Complainant and her colleague would continue to work remotely until the October mid-term. The Respondent submitted that this position was in accordance with the government guidelines on essential services in education and set out the specifics of those guidelines. The Respondent noted that as soon as Government guidelines permitted Mr. DM volunteered to attend the school regularly, adhering to the schools Covid Response Plan, to collect post.

The Board discussed measures which could practically be taken by the school to assist the BITE programme resume physically, including a snib lock to be fitted to the doors of both offices, as well as a photocopier being removed from the BITE classroom.  It was also agreed that they would place an ad on Boardmatch seeking to recruit a member with HR expertise/experience.

The Board also discussed Health and Safety matters, including that the schools’ safety policy had been circulated, and that SK had reached out to a Health & safety Consultant who had agreed to consult with the Complainant to ensure that all measures had been taken in line with Government guidelines for a safe return to the BITE office.

·        October 2020 Sick leave:

The Complainant was on sick leave from 12th October to 26th October 2020 due to medical illness and correspondence ensued between the Complainant and SK on 13th October in relation to certification.

·        20th October 2020:

SK emailed the Complainant and DM to confirm that the Board had agreed to engage the services of the Health & Safety consultant to support them with Covid safety matters.

·        November 2020:

The Complainant was out of work again on certified sick leave from 2nd November to 16th November and SK received an email from the Complainant on 2nd November entitled ‘Health Concerns’.

o   5th November – a Board meeting was held to discuss the Complainant’s letter.  The Complainant was on certified sick leave and was not present at the meeting.  SK advised the Board that the Complainant was being offered 2 services: the health and safety consultancy service, as well as the confidential pastoral support. It was agreed that when the Complainant returned to work that the Respondent would set up a meeting with her to discuss the options, including the need for BITE to have a physical presence in the school, putting protocols in place to ensure the safety of BITE staff, and to ask the Complainant which parts of her contract she could not do.

o   16th November – SK emailed the Complainant to welcome her back to work

o   17th November – SK emailed Board members to get approval to release funds for the services of the Health & Safety Consultancy firm.  On the same day SK organised a return to work interview with the Complainant, together with another member of the Board.  The Complainant was told that the Respondent had agreed to get professional outside assistance from a Health & Safety Consultant. SK also advised the Complainant that it was important for BITE to have a physical presence in the school and the Complainant was requested to submit a proposal for her return to BITE office in the school, however, no date for her return was discussed.

o   19th November – the Respondent submitted that they were aware that the Complainant had a telephone conversation with the health & Safety Consultant and he confirmed afterwards to SK that the plan which he and the Complainant were creating would be very similar to the one which DM had already created in August 2020.

o   25th November – SK received an email from the Complainant which outlined her safety concerns in relation to her physical return to work on site.  SK responded that she would forward the correspondence on to the Board.

o   27th November – SK responded to the Complainant’s email and reiterated that the Board was open to any “reasonable proposal” to return to the office and would consider any “compromise” which the Complainant may put forward.  SK requested that any such proposal be submitted by 10 am on 30th November.

o   30th November – a meeting was held with the Complainant to discuss possibilities surrounding resuming physical operation of BITE in the school.  It was acknowledged by SK that the Complainant had been given an opportunity to present a plan to the Board for returning physically to the office, however the Complainant did not provide any alternative apart from working remotely. At the meeting the Complainant was advised that the Board would be writing to her with a date to resume work on site in the school. SK reassured the Complainant that if she had a health issue that aligned to the relevant category which precluded this, she should get confirmation of same to the Board.

o   30th November – Following the above meeting SK confirmed by email to the Complainant that the Health & Safety Consultant would continue to liaise with her on covid safety matters.  SK outlined the requirements that the Complainant would need to comply with when physically returning to the workplace and that the Board had decided that the Complainant should return to the workplace on 7th December 2020. SK concluded the email by reiterating that the Board “remain open to any requests that you feel necessary to put before the Board in the future.”

·        December 2020:

o   1st December –

The Complainant responded to the above email and disputed some of the matters contained therein.

SK emailed the Complainant re BITE’s Covid Response Plan and attached that plan, together with the Return-to-Work Form, and the school’s Covid response Plan. SK confirmed that she had spoken with the Health & Safety Consultant who had advised that their Covid response Plan should be in accordance with that of the school and she confirmed that she would remain available to assist in getting the Respondent’s up-to-date Covid Response Plan “over the line”.

o   3rd December

SK emailed the Complainant confirming that 2 safety chains had been fitted to the Complainant’s office and that she had confirmed with the school that the Complainant would be covered by the school’s Covid response Plan pending the Complainant and the Health & Safety Consultant completing the plan for the Respondent.  SK also appended a copy of the notes of the meeting of 17th November to the email.

o   4th December

The Complainant responded and indicated that she would be submitting a formal resignation to the Board.

o   7th December 

The Health & safety Consultant emailed SK with the draft BITE Covid Response Plan based on the guidance available at the time from Government, HAS and HSE and recommended that the Plan be approved by the Board.  On the same day the Complainant emailed her formal resignation letter to the Board.

o   8th December

SK acknowledged receipt of the Complainant’s resignation by email.

o   11th December

SK sent a letter to the Complainant stating that the resignation came as a surprise and that “it was always anticipated by the Board that an amicable agreement would be reached which would facilitate a physical return to the BITE office.” She further reiterated that BITE’s mission is to support students from largely disadvantaged communities to access third level education and that whilst some of BITE’s goals had been achieved remotely, BITE’s objectives could only be fully reached if the students had access to all supports which required a physical presence working from the BITE office.

The Respondent appended copies of all correspondence and minutes/notes of all meetings referred to in their submission.

In summary the Respondent submitted that the Complainant did not exhaust the internal processes available to her before she resigned, that when the schools returned to in person classes BITE consider the possibility of a return to an on-site presence for their service, that from August 2020 onwards BITE consulted with the Complainant in relation to the development of their Covid Response Plan and as such had fulfilled all their obligations to her.  Finally, the Respondent pointed out in their submission that the Complainant had not established that the workplace was such a dangerous place that she could not reasonably be expected to return.

The Law

In their submission the Respondent referred to Section 1 of the Unfair Dismissals Act which defined “dismissal” in relation to an employee as meaning:

(a)   The termination by his employer of the employee’s contract of employment with the employer, whether prior notice of termination was or was not given to the employee,

(b)   The termination of the employee of his contract of employment with the employer, whether prior notice 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, or

(c)    The expiration of a contract of employment of a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose.”

In considering this definition the Respondent also referred to Kerr, where in his ‘Termination of Employment statutes’ book (2016) he comments that paragraph(b) refers to what is commonly described as ‘constructive dismissal’.  Kerr goes on to comment that, “the distinction between the two limbs of para. (b) is well summarised by the Labour Court in Paris Bakery & Pastry Ltd v Mrzljak DWT 68/2014. The Respondent submitted that the first limb applies where an employer behaves in a way that amounts to a repudiation of the contract of employment and outlined that in the aforementioned case the Court had noted that not every breach of contract will give rise to “repudiation”. 

The Respondent further submitted that the second limb applies where an employer conducts his or her affairs, in relation to the employee, so unreasonably that the employee cannot fairly be expected to out up with it any longer.  The Respondent submitted that Kerr went on to comment that, “If unequivocal words of resignation are used, the employer is entitled to immediately accept the resignation and act accordingly.” The Respondent further submitted that only in a situation where there is a withdrawal of a resignation by the employee and the resignation was made “in the heat of the moment”, in such cases there may be a duty on the employer to take into account such circumstances.

In their submission the Respondent referred to Millet v Shinkwin DEE/2004 where the Labour Court stated the “general rule” to be as follows: “a resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end.”  The Respondent further submitted that where an employee chooses to resign and claim constructive dismissal is obliged to exhaust the internal Complainants or grievance processes before taking such drastic action and referred to paragraph 19.14 of Redmond on Dismissal Law in support of that position.  The Respondent submitted that the Complainant’s decision to resign from her position came without her first invoking the grievance procedure and submitted that the procedure is clearly provided for at Section 10.1 of the Complainant’s contract of employment. 

The Respondent submitted that it is well settled law that the failure to invoke the grievance procedure is fatal to an unfair dismissal claim and relied upon the decision of the Employment appeals Tribunal of Harkin v Guinness Storehouse Ltd UD469/2015 in support of this position.  In that case the tribunal looked at the reasonableness of the behaviour of both the employer and the employee and found that the employee must exhaust all avenues before tendering their resignation and that the employee did not give the employer the opportunity to deal with her Complainants prior to her resignation.

The Complainant’s obligation to mitigate her loss.

The Respondent submitted that the Complainant had failed to provide evidence of her mitigation of loss and that while she had provided a letter of 11th June 2021 in relation to the particulars of loss, she had not provided documentation to provide proof of loss. The Respondent submitted that they could not be expected to compensate the Complainant for loss alleged to have been incurred by her in respect of termination of her employment in the absence of clear and compelling evidence establishing that the Complainant had engaged in sustained efforts to seek out and secure alternative employment.

Witness Evidence – Ms. SK

Ms. SK confirmed that she was the Chairperson of the Board and that she took over that position at the start of the pandemic.  She outlined the aims of the BITE Programme and described the importance of sensitivity when dealing with the families involved, and the importance of engagement.  She confirmed that the Complainant had generally good relations with members of the Board, organised activities well, secured good levels of participation, forged strong links with teachers and identified links to funding opportunities.

Ms. K confirmed that at the outset of the pandemic the staff commenced working from home in March 2020.  She further confirmed that at a meeting of the Board in May 2020 the Complainant discussed the poor engagement in the programme, she advised that this appeared to be linked to issues with participants not having access to laptops, issues regarding living conditions, having no quiet area to study and no prompting to engage in study.

Ms. K outlined that at a meeting in July 2020 the Complainant raised concerns at a meeting in relation to return to work health and safety issues.  She confirmed that it was unclear at that time if a return to the workplace would be put in place across the education sector.  She stated that at that time the Complainant raised concern that there were no locks on the office doors and that it was requested of the school Principal, in writing, that a snib would be put in place.  She confirmed that this was not done straightaway as they awaited the janitor putting this in place.

Ms. K stated that in August 2020 Mr. M prepared documents which clearly demonstrated that preparations were being made to put safety measures in place for a return to the workplace and she stated that the Complainant was aware of that document.  Ms. K confirmed that the schools were planning to reopen in September 2020, and it was agreed that BITE would remain remote until late September/early October as they wanted “to see how things would pan out” and to allow the school to settle first.  Ms. K further confirmed that there was engagement with all relevant parties as far back as August 2020 in relation to plans to return to the workplace albeit in a slow fashion, and that they needed to align their own safety plan with that of the school.  Ms. K stated that this needed input from the Complainant as Programme Director.  She stated that the Complainant asked to have the photocopier removed to avoid unnecessary “drop-ins”, that there was no disagreement with this suggestion and that the Board had sought to have it moved and that the school had agreed to the proposal.

Ms. K stated that there were detailed discussions regarding health and safety issues in October but that when the Complainant returned to work after sick leave, she became unwell again on the first day back and was not available for discussions for another few weeks and she also confirmed that the Complainant raised health concerns upon her return to work in relation to anxiety. Ms. K outlined that the Board met to discuss those concerns in November 2020 and agreed to meet with the Complainant to discuss options.  She confirmed that she met with the Complainant 3 times, that the Board were open to suggestions and were willing to compromise.  She confirmed that she asked the Complainant for suggestions. 

Ms. K outlined the input from the Health & Safety Consultant and stated that as Programme Director inputting to the Safety Plan was a core part of the Complainant’s work.  She advised that the Complainant provided 2 medical certificates which described the Complainant as “unwell” and she was aware that the Complainant had high blood pressure.   Ms. K stated that there were different risk levels for individuals in the context of the pandemic and she requested that the Complainant provide documentation if she fell into the high-risk category e.g., transplant recipient, cancer survivor, asthmatic etc. She advised that no information was ever provided.

Finally, Ms. K stated that she knew that everything hadn’t been resolved but thought that there was a lot in place, that she had expected to receive suggestions not a resignation.  In response to questions from the Respondent representative she confirmed that BITE is now running programmes on site, that there is a new Director and there is no more remote working.  She further confirmed to him that the Complainant had raised concerns informally but had never raised a formal complaint. The Respondent Representative asked her what difference a formal complaint would have made, and she advised that it would have been easier to handle, that she would have been able to inform the person.

Witness Evidence – Ms. SK (under cross examination from the Complainant)

In response to questions from the Complainant Ms. K confirmed that the Complainant was the BITE Programme Director under contract to the BITE Board.  The Complainant asked was it then reasonable to expect that she would operate under BITE policy and Ms. K stated that she needed to work within two policies – that of BITE and that of the school, in whose premises they operated.

The Complainant asked if Ms. K thought the policy should not have been issued to her while on sick leave and Ms. K responded that it was critical to have her input as the Programme Director.

The Complainant stated that while it had been described by the Respondent that the BITE plan was available no plan had been sent to her and asked Ms. K to clarify.  Ms. K stated that it would have been given to her had she not resigned.

The Complainant asked to clarify what work was not done while the service was being delivered remotely and Ms. K advised that there were issues with attendance of students at homework clubs, that there may not have been formal evidence but that everyone was aware of what was happening.  The Complainant also asked what proof was there that students weren’t getting soft skills and Ms. K said that there were concerns raised by teachers.  The Complainant responded that no concerns of that nature were ever raised with her. Ms. K described issues that had been raised informally but never made formal and the Complainant described issues of conflict in 2019 that had been a source of concern and distress to her.

In response to further questions Ms. K confirmed that in July 2020 it was agreed that the 2 staff would continue to work from home, that a policy was needed, that there would be a slow return and confidence build to support the return and she accepted that a Board colleague would have been “likely” to have said that the Complainant should not return to work without a BITE Plan. Ms. K also accepted that Mr. M had developed a plan for a return to work back in August and that by doing so it was clear that what everyone wanted was a safe return to work.  The Complainant suggested that nothing happened after that proposal in August, to which Ms. K responded that the Health & Safety Consultant was engaged in October. Ms. K further acknowledged that in October everything remained the same in BITE and that here was no talk of a return-to-work date, but she said, that didn’t mean it was open ended in terms of returning to on site working.

Information provided by the Respondent Representative

I noted the information provided by the Respondent representative as follows:

·        That the Respondent was a charity established in the late 1980’s with the aim of supporting children from the local community into third level education. 

·        That the Programme Director had her own office, access to a classroom and that the organisation had a second office for the part-time administrator.

·        That the Respondent had engaged fully in relation to the Complainant’s return to the workplace

·        That the Complainant never attended on site at work from March to December 2020

·        That the Complainant did raise concerns and despite her contention to the contrary, that the Respondent did take those concerns very seriously.

·        That the school had a Covid Response Plan in place and that the Respondent had engaged a H&S consultant to support the Complainant in developing their own plan.

I noted further the position outlined by the Respondent representative that there is a “high bar” required in cases of constructive dismissal, that there must be a significant breach and that there is a requirement on the Complainant to demonstrate that breach.  In addition, I noted the position that the Complainant must have substantially utilised the available procedures, that the Respondent accepted that the Complainant had raised issues of concern but did not accept that she had raised a formal grievance.  The Respondent Representative also drew attention to the fact that the Respondent had devised a plan in December which would have been in place for the Complainant’s return.  The Respondent representative pointed out that in all the circumstances no fundamental contract breach occurred, the Complainant did not fully engage in developing a Covid Response Plan, she did not propose any compromise and that in circumstances where schools had reopened BITE was denying essential services to their service user. 

I noted that the Respondent Representative stated that the Complainant was aware of the work of the H&S Consultant and that she had engaged with him on the proposed plan, yet despite this, she resigned her position on 4th December. The Consultant submitted his plan on 7th December.

In summarising the Respondent case the Respondent Representative stated that the Complainant had resigned without giving the plan a chance, that while she had general health and safety concerns these were in the process of being addressed.  He stated that he did not accept that if she had received the final plan she would have been satisfied and that she pre-empted the plan when she resigned prematurely on 4th December.  Finally, he stated that the adjudication decision of 2021, referred to by the Complainant which decided in favour of the Complainant applied to different circumstance to the instant case.  He stated that in that case the employer had refused to engage and had refused remote working.

CA -00042173-001

The Complainant confirmed at hearing that this complaint was a duplicate of CA- 00042172-001

and was submitted in error.

CA- 00042172-001

In considering this matter I took into account the information supplied by both parties in their written submissions and the appendices and other supporting documentation submitted by the parties. I also considered carefully the evidence given under oath by both parties at the hearing. 

The Law

Safety, Health & Welfare at Work Act

This act sets out the health and safety requirements of the workplace. Section 8 provides the general duty to ensure “so far as is reasonably practicable, the safety, health and welfare at work of his or her employees”. Section 8(2) provides details, including the duty to provide “systems of work that are planned, organised, performed, maintained, and revised so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.”

Schedule 3 of the Act provides general principles of prevention, including ‘1. The avoidance of risk 2. The evaluation of unavoidable risk …4. The adaptation of work to the individual…5. The adaptation of the place of work to technical progress…7. The giving of priority to collective measures over individual protective measures” The principles are accepted as the manner in which risks and hazards are addressed and it is clear that the most effective way to address a risk is to eliminate it, followed by substitution, then by engineering or administrative controls. Personal protective equipment is the last resort and the least effective measure.

Section 13 imposes a number of duties on the employee, including the duty to comply with statutory provisions and to take reasonable care to protect their safety, as well as to co-operate with the employer to prepare a written risk assessment of hazards, including any unusual risks to a particular employee.  The duties imposed on both the employer and the employee are an implied term of the contract of employment and through the contract both are bound to comply with statutory regime and relevant health and safety policies.

Constructive dismissal – legal tests

It is clear from case law that there are two distinct test for constructive dismissal and they are known as the ‘contract’ test and the “reasonableness test”. (Ref Western Excavating (ECC) Ltd v Sharp IRLR 27 and Conway v Ulster Bank UD474/1981).  The both require the employee to discharge the burden of proof but they are separate tests.

In a claim of constructive dismissal, the Adjudication Officer must determine if the employee has met either test. While an employee may be able to satisfy both tests, they are not required to meet both tests and there is no combined test of repudiation and reasonableness.

Contract Test

Western Excavating (ECC) Ltd v Sharp summarised the contract test as: “If an 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.”

Reasonableness Test

Western Excavating (ECC) Ltd v Sharp also stated that the reasonableness test provides that the conduct of the employer should be assessed 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.”  The reasonableness requires an assessment of the employer’s conduct and the extent to which the employee sought to utilise the procedures and raise their concerns.

Application of the legal tests to this case:

This case relates specifically to circumstances which occurred during the Covid 19 pandemic and the questions that arises here is whether or not the Complainant was constructively dismissed either by repudiation of her contract or if it was reasonable for her to resign.

I noted that as an infectious disease, Covid 19 constitutes a biological hazard and so the Health & Safety at Work Act, the underpinning of health and safety principles and the duties of both parties under the Act are key to this case.

In considering evidence given at hearing, together with written submissions and appendices I have formed the view that the Complainant was suffering with a great deal of anxiety associated with both her relationship with a particular Board member and with issues arising from the pandemic.  I also formed the view, that while she did not formally invoke the grievance procedure she did, both informally and formally notify the Respondent of her concerns in relation to safety concerns regarding her return to the workplace. It is also clear to me that the Respondent was on notice and was well aware of the Complainant’s health issues and her level of anxiety, particularly in circumstances where she had been hospitalised on two occasions. 

I also formed the view that the Respondent acted responsibly in engaging the services of the Health & Safety Consultant and in ensuring that the Complainant was consulted with as part of the process to develop the safety plan and I accept that it was necessary to align the BITE safety plan with that of the school within whose premises BITE operates, and I consider both plans to be relevant for the purpose of a safe return to work.

I considered the timing of events to be relevant to this matter and I noted

·        That it is common case that the Complainant first raised her safety concerns with the Board in July 2020,

·        That her colleague prepared a safety proposal in August 2020

·        That at the same meeting where that proposal was tabled it was agreed to continue with remote working until late September/October 2020

·        That there was no real evidence that any action was taken to address the safety concerns within the period August to early October

·        That it was at the Board meeting of the 15th October that it was decided that the Complainant was an essential worker and must return to the workplace that the Board would engage an external consultant to support the development of a safety plan.

·        That this information was communicated by email to the Complainant on 20th October during a period of sick leave from 12th October to 26th October. 

·        That the Complainant subsequently was on annual leave from 27th October to 1 November and on further sick leave from 2nd November to 16th November

·        That on 2nd November the Complainant email her concerns to the Respondent Board

·        That on 17th November SK emailed Board members seeking their approval for release of funds for the professional health and safety services

·        That at a meeting with the Complainant on the same day the above arrangements/supports were outlined to the Complainant and that she was asked for a proposal for her return to work on site

·        That on 19th November contact was made between the Health & Safety Consultant and the Complainant who confirmed that the plan would be similar to the one developed internally in August

·        That on 19th November the Complainant again wrote to SK outlining her concerns but gave no proposed date for a return to on sit working That on 27th November SK responded on behalf of the Board advising that the Board was open to any “reasonable proposal” and would consider any “compromise” put forward by the Complainant and asked that if she wished to make suc a proposal she should do so by 10 am on 30th November

·        That a meeting took place with the Complainant on 30th November to discuss the return to work and where it was pointed out that the Complainant had been given opportunities to present proposals for a return but that no proposal, other than remote working, had been forthcoming. At the meeting the Complainant was advised that the Board would be writing to her with a date for resumption of on-site working

·        That by email of 30th November SK confirmed that the Health & Safety Consultant would continue to liaise, that the Complainant should utilise hand gels, masks and social distancing when on the school premises and that she was expected to return to on site working on 7th December.

·        That on 1st December the Respondent emailed copies of the school Covid response Plan, the Return-to-Work Form, and BITE’s Covid Response Plan.  I noted that the BITE Covid response plan could only have been a draft as the final Plan was only received from the consultant on 7th December.

Having considered the evidence I find that the Complainant was entitled to consider herself to have been constructively dismissed on the following basis

·        It is clear from the above sequence of events and associated timeline that there was a significant escalation of the timeline for a return to work and an insistence in relation to that return.  While the Respondent stated that the Complainant made no proposal other than remote working, neither did the Respondent offer any suggestion of a phased return or any suggestion that the return date would be delayed until the safety plan was available and had been assessed.  Nor indeed did the Respondent propose any alternative to their instruction to return full time from the 7th December.

·        I noted that the service had operated successfully from March 2020 and that all relevant students had matriculated that year and I noted that there was concern in relation to the attendance levels at the remote session.  However, this concern is no greater or more significant than that which was experienced in all educational facilities, and I noted that at the time of the proposed return to the workplace levels of infection were high and ultimately on 24th December 2020 Level 5 restrictions were re-introduced across the country. I further noted that many educational facilities operated remotely or on a hybrid model between September and December 2020.

·        While I appreciate that the Respondent did not consider it optimal to provide service remotely, in the specific context that pertained at that time this was the only measure that would have eliminated risk, particularly as vaccines had not been made available to the general population.  In addition, while I noted that work had commenced on developing a Covid Response Plan, the Respondent was not yet in receipt of that proposed plan at the time of their insistence of the return to the workplace of the Complainant and even measures that she had identified as far back as August 2020 had not been fully implemented.

·        I also noted that the Complainant had not been advised of any measures that had been taken and that as the proposed Covid response Plan from the external consultant was received on 7th December, 3 days after her resignation, she was never given a copy of that proposed plan.

Taking all of the above into account I find that the requirement for the Complainant to return to the workplace without adequate consideration of the elimination or mitigation of risk amounts to repudiation of contract.  I consider this to be the cases in circumstances where the Respondents’ Covid Response Plan was not finalised, any measures envisaged by that plan could therefore not have been not considered or implemented, and mitigation of the risks identified by the Complainant in advance of that plan were not fully addressed by the Respondent in advance of that return date.

I also find that the Complainant met the “reasonableness test” for constructive dismissal.  She very clearly articulated her grievances, both verbally and in writing and highlighted the areas she believed needed to be actioned.  This was not adequately considered or addressed by the Respondent, leaving her with no real alternative but to resign.

In respect of redress, I noted that the Complainant made significant efforts to secure alternative employment, which included making application to more than 20 employers and interviewing for 10 roles.  I noted further that the Complainant confirmed that she secured alternative employment in May 2021 albeit on a part-time basis, earning €25,800 p.a. She further confirmed that she received a total of €2923.20 from Social Welfare until she took up the alternative employment.  I noted that her salary for 2020 with BITE was €46,185.

The Complainant was not in employment from 22nd December 2020 until 11th May 2021 and she was reduced to part-time working in her new role. The resultant loss of income amounts to the sum of €16,829.05 less social welfare received.  In that context I find that she is entitled to compensation of €13,905.

CA -00042173-001

The Complainant confirmed at hearing that this complaint was a duplicate of CA- 00042172-001

and was submitted in error.  As this complaint is a duplicate of CA- 00042172-001 there is no requirement for a further decision on this case.

CA- 00042172-001

I decide that the Complainant was unfairly dismissed by the respondent and the Respondent shall pay the Complainant redress of €13,905 as compensation for the unfair dismissal.

CA -00042173-001

The Complainant confirmed at hearing that this complaint was a duplicate of CA- 00042172-001 and was submitted in error and in that context, there are no findings or decisions relating to this complaint number.  All findings and decisions in the unfair dismissal Complainant of this Complainant against this Respondent are set out under CA- 00042172-001 above.

Unfair Dismissals Act/constructive dismissal

Health & Safety/Covid-19 pandemic

Repudiation of contract/reasonableness