Complainant

Respondent

Parties

A Worker

A Social Care Facility

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00028859-001

05/06/2019

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

CA-00028859-002

05/06/2019

The issue in contention was the Alleged Unfair Dismissal of the Complainant, a Duty Officer, from a Residential /Emergency housing facility. The employment began on the 1st July 2014 and ended on the 28 December 2018. This date was subject to some discussion between the Parties.

The rate of pay was, at the date of the complaint, €500 for a 40-hour week.

A subsidiary Minimum Notice complaint was also lodged.

The Complainant gave a detailed Oral Testimony supported by a substantial Written Submission. The Principal Spokesperson was Mr O’Connor BL.

CA: 00028859-002 Unfair Dismissal

 In essence the Complainant stated that the Employment had gone well (with a few medical issues due to Gastritis) until an incident on the 30th September 2018. A non-resident associate of a Resident had behaved extremely violently and attempted to force his way into the Premises. The Complainant was physically injured and psychologically traumatised. None the less the Complainant had struggled on at work until the 14th November 2018. He met the Manager, DON, that day. He was given two weeks off work, paid, to allow a recovery period. Mr DON, had however, stated that day that the Complainant “Was not suited to this job”. The Complainant was of the view that DON wanted an end to the employment and was hinting of a “Pay Off”.

The Complainant returned to work although still unwell in early December. On the 10th December 2018 a phone conversation took place with the Owner, Mr AM and the Manager, DON. It was a wide-ranging conversation and covered matters such as Dublin Corporation invoices being improperly completed, the fact that the Complainant had initiated a PI Action and the medical history of the Complainant particularly his Gastritis. Issues of Annual & Bank Holiday leave were also mentioned.

In final conclusion, the owner Mr AM told the Complainant that “he was best not coming back to the job” and he would be paid for three weeks in a final pay off.

Effectively the 10th December 2018 was the last day of actual work.

A P45 was received by the Complainant on the 28th December 2018.

Following the ending of the employment the mental health of the Complainant deteriorated dramatically resulting in major counselling interventions and a number of in-patient Psychiatric Hospital stays (both in Ireland and the UK) over the years 2019 to 2021.

By the date of the final Hearing on the 7th November 2022 he was recovered and back at work.

In summary Mr O’Connor BL, for the Complainant, stated that the purported ending of employment on the 10th December 2018 had been in breach of all proper employment procedures, no warnings were given, no notice was allowed, no representation was present, and no appeal was allowed.

It was completely precipitate and totally Unfair.

CA-00028859-001 - Minimum Notice

The Complainant had over four years’ service and was due Two Weeks Statutory Notice.

The Respondent gave a lengthy Oral Testimony from Mr AM (supported by Ms DM) and submitted a Written Submission. He was represented by Mr Bonham.

CA: 00028859-002 Unfair Dismissal

In opening the Respondent Owner, Mr AM, gave details of his long experience in running Social Care/Emergency Housing facilities. It was not a job for the faint hearted. The Complainant had been recruited, somewhat informally, and had worked well for some time.  He was a good reliable employee from 2014 to late 2018.

However, by 2018 it was obvious that the Complainant had many deep-seated Personal issues/traumas in his background. Mr DON had helped as such as possible as he, AM, had himself. Various Medical and Counselling fees were paid by the Employer.

The Respondent paid for a GP visit in early October and a Physiotherapist on the 12th October 2018.

On the 13th November the Complainant met with DON and requested time out to get a recovery period for his “back, leg and mental health issues”. The attitude of the Complainant was very confrontational. None the less he asked for financial help towards Counselling for his mental health issues. 

The Complainant was granted the paid time off and came back to work on the 3rd December 2018. He worked until Friday 7th December. Negative feedback was beginning to come to the Manager from residents about the Complainant’s general attitude.  A meeting with DON (the Manager) and AM(The Owner) took place on the 10th December 2018. It was confrontational and various allegations were made regarding DON and alleged financial misappropriations by him. Later that day the Complainant told AM that he “was unavailable for work” and never came back to the Premises. The Respondent paid him full pay until the 26th December. This was taken by the Respondent to include any notice pay elements.

On the 27th December 2018 the Complainant told AM by phone that he could no longer work with DON. “The Work relationship is finished” and he would not be coming back to work. This was taken, by the Respondent, to be a confirmation of the resignation of the 10th December and a P45 issued the next day.

Earlier in the call the Respondent had explained that further Paid Time off was not possible. The Company did not have a sick pay scheme and monies paid to date had been out of “good will and concern”.

In the following days the Complainant made numerous contacts with AM. The Owner was very concerned about the mental health of the Complainant and tried to get him to go to Hospital.

In early 2019 post the resignation the Respondent was in regular contact with the Complainant and paid for a number of counselling sessions out of concern for the Complainant.

The was no further contact between the Parties until the WRC compliant letter was received on the 13th June 2019.

The Respondent gave a lengthy and credible Oral Testimony. He believed that the Complainant had many external issues in his personal life and had become effectively unstable by the end of 2018.  The Door incident on the 30th October 2018 had been serious but in reality, it was part of the job in a Homeless Shelter.

Considerable time off, on full pay, had been given as well as Medical bills paid. This could not continue indefinitely. The Complainant had been very clear on the 10th December and again on the 27th of December that he “saw the job as finished - he could not work with DON.

The Respondent had a duty of care to all his residents. The behaviour of the Complainant had become too erratic. Reluctantly after discussions with DON it was decided to accept, the Complainants statements of the 10th and 27th of December as a Resignation although nothing in writing was ever received.

CA-00028859-001 - Minimum Notice

Any notice pay obligations were discharged by the Respondent in the Payment of € 975 covering the period 12th to the 26th December. The Complainant had not physically worked these days.

This case has two elements, a primary Unfair Dismissal case and a follow-on Minimum notice complaint. As one determines the other, they will be taken in sequence

3:1 CA-00028859-002 – Unfair Dismissal – The Statutory position and Legal case law precedents.

The Legal position is as set out in the Unfair Dismissal Act,1977 and in this case particularly in SI 146 of 2000 - Code of Practice on Grievance and Disciplinary Procedures.

In plain English a Dismissal requires that proper employment procedures (as set out in SI 146 above) are followed to ensure that Natural Justice is observed. As Mr Justice Flood stated in Frizelle v New Ross Credit Union Ltd, [1997] IEHC 137

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

In this case the Natural Justice issue in complicated by the necessary consideration of the question of the purported Resignation on the 10th December 2018.

Mr. D. Ryan SC, writing in Redmond on Dismissal Law, 3rd Edition 2017, Bloomsbury at para 22.22 Page 495 stated

“Where unambiguous words of resignation are used by an employee to an employer, and so understood by the employer, generally it is safe to conclude the employee has resigned -----However context is everything. A resignation should not be taken at face value where in the circumstances there were heated exchanges or where the employee was unwell at the time. The intellectual makeup of the employee may also be relevant”

Ryan further cites Keane v Western Health Board. UD 940/1988 where the EAT referred to the “Confused state of mind at the time it (the resignation) was tendered”.

Accordingly, it follows that a resignation has to be treated with caution by an employer particularly where there is nothing in writing and as in this case there were very significant Health issues.

However, all case rest on their own evidence and factual basis and these need to be examined below.

3:1:2        Review of Oral Testimony and submitted written materials.

From the written materials which contained much medical evidence that, as regards this case it has to be cautioned, post dated the ending of employment, the Complainant had a serious mental situation during 2019 to 2021. In this period, he was for periods a Psychiatric in-patient.

It has to be noted that on the 24th December 2018 he was in the A & E of Beaumont Hospital for severe mental issues. (Dr L report). He was clearly very mentally unwell. It would not be unreasonable to assume that this, effectively a breakdown, did not happen overnight.

From the sworn Oral testimony of the Respondent, Mr AM it was clear that the Respondent knew of this situation. The Complainant had been given two weeks’ time off in November 2018 to “Clear his head”.

In this context the alleged Resignation of the 10th December 2018 and or the confirmation on the 27th December 2018 would not stand even a basic legal challenge. The Complainant was not mentally fit to make any decisions. In this context the ending of employment, by issuing a P45 on the 28th was a very precipitative act by the Respondent. It amounted to an Unfair Dismissal.

This is leaving aside any other Procedural issues regarding Fair Procedures or Medical Investigations or whatever.

However, this has to be balanced by the views of the Respondent in his Oral testimony. He was running a Homeless Refuge/Shelter. This was not a job for the “Faint Hearted” and the Complainant was obviously incapable (and likely to remain unwell for a considerable period of time) of the work. There could be no doubt of this.

The Respondent had acted “reasonably” in giving recovery time off and paying for medical expenses. This continued past the ending of employment. The Oral testimony of Mr AM was very sympathetic to the Complainant. They had enjoyed a good personal relationship.

However, he had a Refuge/Homeless hostel to run and not looking too closely at the purported resignation was not totally “unreasonable” employer behaviour.

The Respondent did not directly Dismiss the Complainant. There were no letters of Dismissal simply an acceptance of a purported Verbal Resignation. The Respondent did not explore any avenues of Dismissal on grounds of Capacity on medical grounds and it did not appear that an option of simply keeping the Complainant on a long-term sick relationship, or “Reasonable Accommodation” was ever considered.

The final Adjudication conclusion had to be none the less that the “Resignation” coming from an employee with serious psychiatric issues was invalid and created an Unfair Dismissal.

In considering Redress, under Section 7 of the UD Act,1977 these issues will be reflected upon.

3:2       Minimum Notice CA-00028859-001

As the Dismissal was found to be Unfair the Complainant would normally qualify for statutory Minimum Notice of Two Weeks’ pay. However, on review of the evidence and written Respondent materials, the payments in December 2018 discharged this Employer obligation.

Resignation, Mental capacity, Minimum Notice.