Complainant

Respondent

Parties

Adam  Higgins

Cross Vetpharm Group Limited Zoetis Tallaght

Representatives

David Murray B.L. instructed by Gill Traynor Solicitors

Peter Flood  IBEC

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-00046772-001

21/10/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent took the affirmation at the start of the remote hearing.

The finalisation of this decision was delayed due to the impact of Covid 19.

The complainant submitted that he was diagnosed with an illness and was approached by his employer with a request to provide medical evidence that he was able for night work.  He attended his GP who certified that he would benefit from “regular daytime working hours”.  He submitted that he provided a further certificate confirming that he was medically unfit to work nights and weekends.

The complainant submitted that he was unilaterally moved to a weekend shift.  The complainant submitted that ultimately he never returned to work.

The complainant submitted that in December 2020, following an intervention from his employer he arranged for his Social Welfare payments to be made to the employer.

In February 2021, the complainant formally invoked the grievance procedure through his trade union, and the grievance were heard that month.  The complainant appealed the grievance decision; however, the grievance was not upheld.

The complainant submitted that the respondent made a number of procedural and material factual errors.  The complainant submitted that he was unsatisfied with the representation provided by his trade union and sought to be represented by his solicitor, but the respondent would not agree to that.  He was ultimately accompanied by his trade union representative who did not make any representations on his behalf. 

The complainant submitted that this legal representative suggested a rehearing of the appeal with an independent investigator but that the request was not respondent to, and he was couriered correspondence while he was out on sick leave.

The complainant submitted as the company was refusing to engage with his solicitors that he was left with no option but to resign from his employment with effect from 10 September 2021.

The complainant submitted that the respondent, in hearing the grievances he raised, made a number of procedural and factual errors, which were of such significance that they had the effect of undermining the outcome of the grievance procedure and undermining his trust and confidence in his employer.

The complainant submitted that he was under medical advice not to return to work until the issues that had caused his absence were resolved.

The complainant submitted that the failure of on the part of the respondent to properly and fairly investigate his grievances led to a fundamental breakdown in trust and confidence in the employment relationship. The complainant also submitted that the respondent conducted itself in such a way as to injure his health.

The complainant submitted that he found alternative employment two weeks later, albeit at a lower salary.

The respondent submitted that following his diagnosis and a two-week period of certified sick leave, the complainant returned to work on 24 August and discussed his working arrangements with his shift leader.  During this conversation, the complainant indicated that he would accept a move to working weekend days.

The respondent submitted that the medical certificate submitted by the complainant indicated that he should avoid changing shift times and night shifts.  Following this conversation, the respondent reviewed the shift structures in September and the complainant was informed that this could be accommodated on shift 3 during weekends. The respondent submitted that the complainant indicated that he did not want to move as the move would be incompatible with his lifestyle.  The respondent submitted that the complainant undertook to seek further medical advice regarding working weekend days.

The respondent submitted that following consultation with the complainant he was informed on 13 October 2020 that he would be moving to weekend shifts as the respondent could not ‘in good conscience’ leave him working nights considering the medical advice received. 

The respondent submitted that the complainant was examined by an Occupational Health Physician whose report stated that there was no medical reason why the complainant could work certain days of the week but not others.  This report was shared with the complainant along with an indication that he could return to work on 3 December 2020.

The respondent submitted that the complainant then submitted a cert for work related stress.  In December the respondent reminded the complainant that in accordance with its sick pay policy although he was on full sick pay, his Social Welfare payments should be remitted to the respondent.

The respondent submitted that during this period, two suitable vacancies arose on the complainant preferred shift, Shift 1, which were offered to him.

The respondent submitted that the complainant failed to adhere to its sick leave policy on two fronts and was sent additional correspondence in January 2021.

The respondent submitted that the complainant raised a grievance in February 2021.  The grievance was heard in February and the appeal of that decision was heard in April 2021.  The respondent submitted that there was no issue with eh complainant being represented by his solicitor at the appeal even though the procedures did not make provisions for this.

The respondent submitted that in accordance with its sick leave policy, around this time, correspondent issued to the complainant indicating that he would now be moved onto half pay but would retain his social welfare payments.

The respondent submitted that the appeal hearing findings in relation to the appeal issued to the complainant in July 2021.  In August, the complainant was invited to a meeting to rebuild effective working relationships with his colleagues.  It was also indicated to him that the company would facilitate his working day shifts.  He was also informed of an occupational health assessment to ensure he was fit to return to work.  The respondent submitted that on the following day it received a solicitor’s letter seeking a rehearing of the grievance appeal, objecting to the involvement of certain personnel, and noting that both that two individuals were interviewed at the same time.

The respondent submitted that on 3 September it contacted the complainant to indicate that it was seeking the assistance of the WRC conciliation service to resolve matters.  On 10 September the respondent wrote to the complainant indicating that it had arranged mediation to resolve matters.  The respondent submitted that on the same day the complainant resigned.  In subsequent correspondence the complainant declined to engage in mediation to resolve matters.

The respondent submitted that in the case of Travers v MNBA Ireland Limited (UD720/2006), the Employment Appeals Tribunals found that the complainant was not constructively dismissed and noted that : “the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case” and further stated that “in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”

The respondent submitted that it was not reasonable for the complainant to resign in all the circumstances and that he had fallen far short of what was required of him in all the circumstances of a constructive dismissal.

The complainant submitted that he has lost all faith in the company as a result of the flaws in the grievance procedures, including the interviewing of two witnesses together.  The complainant submitted that he was simply seeking a fair, impartial and independent procedure, that of a second investigation into his grievance but that this was not forthcoming.  He submitted that the law on the matter is fairly straightforward and that his position was reasonable.  He also noted that he always had his health in the forefront of his mind.

For tis part the respondent submitted that in relation to a constructive dismissal case threshold for establishing its reasonableness is very high. From its perspective, it offered him his preferred shift pattern as early as December 2020 but the complainant refused to return to work.  The respondent state that the complainant was also offered but declined mediation to resolve matters.  The respondent also noted that it was open to the complainant to seek recourse to the Industrial Relations Acts if he had a problem with the grievance procedure.

The respondent suggested that the complainant had already made up his mind to resign when he was offered his preferred shifts in December 2020.  It suggested that there was no contractual breaches and no mention of resignation prior to 17 August 2021.  The respondent admitted that it could have conducted its appeal in a more effective fashion, particularly around the interviewing of two witnesses at the same time.  However, given all the circumstances, the respondent suggested that the complainant has not reached the high threshold required to prove that his only recourse was resignation.

Having considered all the written and oral evidence presented to me, I am mindful of the efforts that the respondent made to enable the complainant to return to work, particularly the use of the occupation health assessments, the agreement to change the shifts he would have to work and ultimately offering the complainant his preferred shifts as and when they became available.  In this regard the respondent demonstrated their willingness to find a solution to the problems raised by the complainant.  I consider the respondent has demonstrated their reasonableness as an employer.  As regards the grievance procedure, I note that the procedures could have been streamlined somewhat however, I am not satisfied that they amounted to unfair procedures.  I am also mindful that the employer made efforts to resolve this matter by way of conciliation and mediation before the complainant’s resignation therefore demonstrating their bona fides as his employer.

The burden upon a complainant to establish a constructive unfair dismissal is a high one and requires the complainant to show that he has explored all options open to him before taking the route to resignation.  I am not satisfied that the complainant explored all the possibilities available to him to resolve matters before he submitted his resignation and I find that he acted peremptorily in this regard.  Accordingly, I find that the complainant has not established that he was constructively unfairly dismissed.

Having regard to all the written and oral submissions in relation to this matter, my decision is that the complainant was not unfairly dismissed.

Unfair Dismissal – constructive dismissal – high burden upon the complaint – has not explored all options available – constructive dismissal not established.