ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037630
Parties:
| Complainant | Respondent |
Parties | Shane Ryan | Health Service Executive |
Representatives | Terence J O'Sullivan Solicitors | Eamonn Ross, Employee Relations Department |
Complaints:
Act | Complaints Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00048902-001 | 02/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00048902-002 | 02/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00048902-003 | 02/03/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00051241-001 | 20/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00051241-002 | 20/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00051241-003 | 20/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00051241-004 | 20/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00051241-006 | 20/06/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 withdrawn | CA-00051241-007 | 20/06/2022 |
Date of Adjudication Hearing: 24/03/2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, section 6 of the Payment of Wages Act, 1991, section 27 of the Organisation of Working Time act , 1997, section 8 of the Un fair dismissals Act, 1977, Section 12 of the Minimum Notice and Terms of Employment Act , 1973 and section 7 of the Terms of Employment ( Information )Act, 1994 , following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints .
Background:
On March 2, 2022, through his Solicitor, the Complainant raised 4 complaints /disputes against the Respondent.
1 Ca-00048902-001 Payment of Wages Act, 1991 2 CA-00048902-002 Organisation of Working Time Act, 1997 3 CA-00048902-003 Organisation of Working Time Act, 1997 4 CA-00048902-004 IR Dispute (withdrawn)
On 20 June 2022, through his Solicitor, the complainant raised 7 further complaints/ disputes against the Respondent.
1 CA-00051241-001 Payment of Wages Act, 1991 2 CA- 00051241-002 Organisation of Working Time Act, 1997 3 CA-00051241-003 Organisation of Working Time Act, 1997 4 CA-00051241-004 Unfair Dismissal 5 CA-00051241-005 Industrial Relations (withdrawn) 6 Ca-00051241-006 Minimum Notice 7 CA-00051241-007 Terms and Conditions of Employment (withdrawn) Both parties were represented in the case. Both parties filed outline submissions. All three witnesses gave evidence under oath. At the conclusion of the hearing, I requested that the parties take 14 days to scope out an opportunity to resolve the case. Both parties agreed to undertake this exercise, but no agreement followed. The Complainant undertook to furnish an email dated 27 June 2022 from Pensions in addition to a statement of earnings. I did not receive these documents. The Respondent undertook to furnish records of expenses and parking paid to the complainant in addition to the letter from Ms Part, Assistant National Director, dated 28 June 2022. Both were received and shared with the complainant side.
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Summary of Complainant’s Case:
The Complainant has been employed on a full-time basis from 1 September 1998 to 20 June 2022. He earned €1412.92 fortnightly. It is common case that the Complainant commenced work as a Pest Control Technician in January 2021, having worked as a hospital Porter from 1998. He was professionally accredited in that role and loved the work. In 2018, he experienced interpersonal conflict with a colleague, resulting in a deterioration in his physical and mental health, necessitating 6 months sick leave in 2018.
He worked without incident until February 2019, when he was directed to attend work, but no pest control work or tasks were allotted to him. This continued for three years of “limbo “while on full pay. He raised a formal grievance on 21 August 2020. On 22 September 2022, the complainant was offered a Pest control position in older persons services. The Complainant pursued a job description for the proposed role in older persons service and contended that the proposed role was not at one with his experience and qualifications. The complainant’s representative submitted that his client “. was in effect persecuted “with threats over the next seven months. The complainant was unable to accept an offer of alternative work for 31 January as it was “beyond his experience and qualifications “his pay was stopped on that day. The Complainant has sought to address the differentiation in the pest control posts in an email dated 24 January 2022 to no avail. It was the complainant case that the job was changed.
His employment was terminated on 7 June 2022 and the augmented complaints followed. The Complainant representative requested consideration for the complainant’s mental health condition, which had deteriorated from 2018 onwards. This, alongside hypertension condition was the basis for his being unable to meet with his employer.
Legal submissions followed in case law. Burns v Governor of Castlerea Prison and department of Justice and Equality 2019. Conduct Egan v Elevare ltd t/the lock keeper restaurant, 2020 pregnancy related dismissal Keogh v Department of Education and Skills, 2019, conduct Reilly v Bank of Ireland 2019 conduct Ali v the Governor and company of Bank of Ireland 2021
1 CA-00048902-001 Payment of Wages Act, 1991 The complainant claimed €16,956.00 in unpaid wages. He was notified of the deduction on 14 days’ notice.
2 CA-00048902-002 Organisation of Working Time Act, 1997 The complainant sought annual leave accrued but not taken at 195 hrs per year.
3 CA-00048902-003 Organisation of Working Time Act, 1997 The complainant sought public holiday entitlement.
On 20 June 2022, through his Solicitor, the complainant raised 7 further complaints/ disputes against the Respondent.
1 CA-00051241-001 Payment of Wages Act, 1991 The complainant claimed €16,956.00 in unpaid wages.
2 CA- 00051241-002 Organisation of Working Time Act, 1997 The complainant sought annual leave accrued but not taken at 195 hrs per year.
3 CA-00051241-003 Organisation of Working Time Act, 1997 The complainant sought public holiday entitlement.
4 CA-00051241-004 Unfair Dismissal The Complainant was dismissed from his employment on 7 June 2022 without any notice. There was no process or any procedure before summary dismissal after 24 years loyal and faithful employment. The Complainant was not placed at risk of dismissal and has a clean disciplinary record.
6 Ca-00051241-006 Minimum Notice The Complainant claimed 8 weeks statutory period of notice in light of his dismissal on June 7, 2022
Evidence of the Complainant The Complainant outlined his work commitment prior to his commencement in the role of Pest Control Technician. He enjoyed the work and was successful in the position. Things changed in February 2019 when an interpersonal conflict arose with a colleague in the division. This prompted the complainant’s absence on sick leave for 5.5 months. He had formulated a complaint of being bullied to Mr X who subsequently retired. Mediation was unsuccessful. On his return to work, he observed that there was “no work.” He said that “he was left on a shelf “He sought to receive a workload repeatedly, but this vacuum persisted for 2-3 years. He was unable to secure an engagement with a senior manager due to Brexit commitments. On her return, he was offered the option of a “new pest control “position at older care services at St Finbars Hospital during 2020. He received a job description, which was not comparable to his 18-year role as Pest Technician. A new Manager, Mr O’Sullivan was appointed in 2021. The Complainant had sought changes in the proposed job description, but these changes were not made. He submitted that it was a completely different role. There were too many differentials for him.
The complainant was extremely disappointed as he had no anchor at the office, just a temporary stop off in the morning, followed by time at home. The Complainant said he felt abandoned and eventually became depressed. The whole period took its toll on him causing him to rely on medication for blood pressure and regular visits with his GP. The Complainant acknowledged that the Respondent had sought to meet with him, but he said that he was physically not able to meet as he had experienced a nervous breakdown and was stressed daily. The Complainant detailed the sequencing of the various management interventions in the case. He declined to attend Occupational Health on this occasion, having attended previously in 2018 on work related stress. He submitted that he was not “physically in a place to meet “. When requested to clarify if he had secured a diagnosis of mental health? He advised that he had attended Hospital for treatment of high blood pressure. He said that nobody had asked him, if he was, okay? He clarified that had not received a diagnosis of depression. The complainant denied resigning his position and was aware that the job he loved was gone. He checked the Revenue web site and noted that he was recorded as no longer working for the Respondent from 7 June 2022. The Complainant gave evidence of mitigation, a period of self-employment and personal upskilling. He found new work in IT in June 2022, permanent capacity. He had not appealed his dismissal. During cross examination, the complainant affirmed the difficulties he faced. He confirmed a grievance of December 2020. He accepted that the outcome of this process was the creation of a new pest control role, which he viewed optimistically. He confirmed that he had not appealed this outcome as nobody had outlined the appeals mechanism to him. While aquafit with the grievance procedure, he was not aware how to resolve matters. In relation to the letter dated 21 January 2022, he viewed this as an intimidatory action directed at cessation of salary. When asked what his understanding was of 27 January letter? the complainant responded that the offer of training was insufficient. He did not activate a grievance as he was unaware, he could. By 7 February 2022, he had engaged a Solicitor. In relation to letter of 15 February, he did not know if this was the first mention of his mental health. He was unaware of the attendance Policy. He told the respondent representative that he was not requested to records for medical sick leave. He did not have a working knowledge of the Attendance Policy. He had collaborated with one of the retired managers on this. Nobody asked him for sick certs. The Complainant confirmed that he took legal advice as the letters inviting him to Occupational health and a return to work emerged. He said that he just could not engage with Occupational Health. The Complainant said that he was left in no doubt that his job was gone. He had not quit and wanted to continue. The Respondent representative asked the complainant “why did you not say, I want to continue? “The Complainant understood that he had intimated this in his correspondence with the respondent. By then he was being legally represented. He said this was his first occasion to see the letter of 27 June. He was unsure what he meant when in response to his notice of termination, he replied “I will take the consequences “ He said that he was unable to “meet with anyone “ In re-direct, the complainant clarified that he presumed that the proposed job description remained unchanged. In conclusion, the Complainants representative emphasised that the complainant had endured unfavourable changes in his work. He viewed the pest control post in older person services as a positive development, but he carried the legacy of the historical workplace interpersonal conflict followed by the period of isolation at work over 3 years. He had endeavoured to resolve his grievance but found that the proposed redeployment amounted to a completely changed role. He wanted his same job with same duties back. By March 2022, he had a mental illness and thought it best to refer his issues to the WRC as he was struggling and could not cope. The second set of complaints followed, again, in that vein.
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Summary of Respondent’s Case:
The Respondent operates the Public Health Service in Ireland. In response to all eleven claims, it was the Respondent position that none were valid, and all were disputed.
The Respondent outlined that the complainant was first employed as a Porter in 1998, transferring to the Environmental Health Department as a Pest Control Technician in 2001. In 2018, there were changes required in the provision of pest control services and the use of rodenticides ceased in favour of enforcement only. It was necessary to redeploy the complainant and two of his colleagues. On 13 August 2020, the complainant opposed the proposal to redeploy him to the Portering services of CUH from August 24, 2020.
He was then offered an alternative role as a Pest control Technician in Elderly services on the same terms and conditions based in St Finbarr’s.
The complainant rejected this offer and remained away from the workplace, in receipt of pay.
On 19 November 2021, the Complainant was requested to explore the option of an interim position in transport at St Finbars Hospital with a full return to pest control. Intense efforts followed in seeking the complainants return to work including reliance on the redeployment section of the Public Sector agreement. Correspondence issued seeking his return to work.
On 21 January 2022, the Respondent placed the complainant on notice that his pay would cease if he did not turn up for work. This action was repeated but was unsuccessful. When this did not work, the Respondent wrote to the complainant on 7 February 2022 inviting him to a meeting on 16 February 2022.
On 15 February 2022, the Complainant replied by email refusing to engage. He mentioned the “effects of the process on his mental health “
Efforts were intensified to offer Occupational Health Department support and an opportunity to self-refer to the service. This did not succeed, and the complainant refused to engage.
The EAP service was offered.
On 31 March 2022, the Respondent catalogued the chronology of events in correspondence to the complainant and once more asked him to avail of Occupational Health. The Respondent cautioned the complainant that if the period of non-engagement with his employer persisted, the “HSE would have no option but to take it that he no longer wished to continue with his employment “He was requested to respond by close of business on 7 April 2022.
On 8 April 2022, the Complainant forwarded his response. I received your letter dated 31 March 2022, insisting again that I attend Occupational Health. I say again that I cannot attend a meeting with Occupational Health, or anyone with the HSE, at this time, and I explained why in my previous email to you. I am not going to attend Occupational Health and will take the consequences of not doing so. So, please do not ask me to do what I cannot do at this time. It is not a question of choice; I told you what I am going through in my last email to you “
The Respondent issued a letter dated June 7, 2022, which outlined.
“ …. You have left the HSE with no option but to take it that you no longer wish to continue with your employment within the HSE. Your last date of employment will be today the 7 th June 2022”.
1 CA-00048902-001 Payment of Wages Act, 1991 The Respondent relied on the caselaw in Sullivan v Dept of Education at EAT, when they disputed any liability towards the complainant. There were no properly payable wages. The Complainant did not engage with a proposed redeployment from pest control from 2020 onwards. He did not appeal the proposed redeployment. The Respondent grievance procedures determine that an aggrieved party work under protest pending the processing of said grievance. The Complainant disengaged from his employer in the aftermath of being offered a matching position in pest control without challenge of grievance. Neither did he comply with the necessity to produce medical certificates. The Respondent had suitable work for the complainant, and he did not fulfil the role. The Respondent continued to dispute liability for wages in this case.
2 CA-00048902-002 Organisation of Working Time Act, 1997 The Respondent disputed a contravention of the legislation and suggested liability. They exhibited correspondence titled HR 106-SR which culminated in payment of cesser pay against time paid to January 31, 2022. April 2020 -2021 195 hours 1 April 2021 to 31 January 2022 163.48 hrs cumulative 377.68 hrs (an earlier 2019 annual leave was omitted by photocopy)
3 CA-00048902-003 Organisation of Working Time Act, 1997 It was the Respondent case that public holidays had been paid.
1 CA-00051241-001 Payment of Wages Act, 1991 The Respondent relied on the caselaw in Sullivan v Dept of Education at EAT, when they disputed any liability towards the complainant. There were no properly payable wages. The Complainant did not engage with a proposed redeployment from pest control from 2020 onwards. He did not appeal the proposed redeployment. The Respondent grievance procedures determine that an aggrieved party work under protest pending the processing of said grievance. The Complainant disengaged from his employer in the aftermath of being offered a matching position in pest control without challenge of grievance. Neither did he comply with the necessity to produce medical certificates. The Respondent had suitable work for the complainant, and he did not fulfil the role. The Respondent continued to dispute liability for wages in this case.
2 CA- 00051241-002 Organisation of Working Time Act, 1997 The Respondent disputed a contravention of the legislation and suggested liability. They exhibited correspondence titled HR 106-SR which culminated in payment of cesser pay against time paid to January 31, 2022. April 2020 -2021 195 hours 1 April 2021 to 31 January 2022 163.48 hrs cumulative 377.68 hrs (an earlier 2019 annual leave was omitted by photocopy
3 CA-00051241-003 Organisation of Working Time Act, 1997 It was the Respondent case that public holidays had been paid.
4 CA-00051241-004 Unfair Dismissal The Respondent disputed dismissal and placed the complainant on proof of dismissal.
6 CA-00051241-006 Minimum Notice The Respondent was placed on notice dated March 31, 2022, that in the event that he did not take up his position in older person service (pest control) that his action would be viewed as “he no longer wished to continue his employment with the respondent “. The complainant resigned and was not dismissed. Therefore, minimum notice was disputed.
Evidence of Adrian OSullivan, Principal Environmental Health Mr OSullivan outlined the national changes in service delivery and training following legislative changes of 2018. These influenced and shaped the changes which occurred in the complainant’s role. LANTRA provided a training focus. Mr O Sullivan confirmed the changes were prompted from Europe. This prompted a review of files and a consideration for redeployment. Discussions were held with Mr A and the complainant was offered an alternative posting in June 2020, but he was not interested in this. Mr O Sullivan outlined that he had tried to encourage the complainant to engage on the topic of his position, but he refused to engage. During cross examination on the topic of the job description issued on the older person services, Mr Osullivan denied that the complainants’ duties were being changed and training was available to cover an upskilling need. He went through the Organisational Chart for the division. Mr O Sullivan confirmed that he took over in April 2021. He confirmed that he was aware that the complainant had mental health problems for which he was offered EAP and OHD support. He conformed that he had not received representations from the complainant directly. He said that he had not responded directly to the March email which issued from the complainant. He denied that there was a disparity in the proposed role in older person services and this was just the regulations applied to the workplace. He submitted that the complainant was advised not to be frightened by terminology. This was a national job description. Mr Osullivan said that he took the matter of the complainant’s status very seriously and was clear that the complainant was provided with options to aide his return and to support him. He said that to secure that support all the complainant had to do was sign for OHD or EAP request. He said that there was no need to invoke a disciplinary procedure. There was no letter of resignation, and he did not dismiss the complainant. Mr O Sullivan said that he was disappointed at the complainant s lack of engagement which was effectively a resignation. He said “we tried everything “ Evidence of Shane Keane Mr Keane gave evidence of the complainant’s travel and 9 parking records over 2019 -2020. I requested documents in support, and these were shared to file and with the complainant’s solicitor. He said that the complainant was aware of his options to activate a grievance. Mr Keane outlined the variety of roles held by the complainant during this time with very little pest control work, which had greatly diminished, but rather delivery work. The complainant’s representative, Mr O Sullivan placed a context of locum on these events in Mr as absence. Mr Keane viewed the complainant as absent without leave from January 31, 2022.
In conclusion, The Respondent submitted that many avenues were open to the complainant either through the public service agreement or grievance procedures to resolve his difficulties. It was their position that the complainant was provided with every opportunity to engage but refrained. He did not advance medical back up and refrained from attending the independent occupational health department. The disputes resolution processes were familiar to the complainant as he had engaged previously. His extensive tenure with the respondent ought to have prompted sick notes as he had a record of managed sick leave. Mr Ross submitted that the complainant did not challenge the HSE correspondence which interpreted his actions as a “long goodbye”. He failed to make contact with his employer March 31-April 7, 2022. He did not challenge the March 31 letter. He did not counter the letter of June 7, with a “I want to be employed “by then he had access to representation. His correspondence of April 8 confirmed his acceptance of the HSE position detailed on June 7, 2022, as an acceptance of the consequences The Respondent viewed the complainant’s behaviour as a resignation and not a dismissal.
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Findings and Conclusions:
In this case, I am now required to make 8 decisions for the parties. The parties will see that there is an overlap in the complaints in terms of the March complaints being lodged pre conclusion of employment and overarched in the 20 June 2022 complaints.
In light of the longevity of the complainant’s tenure and his family, it was my earnest wish that the parties would seek to resolve this matter amicably. Both parties agreed to try, and I respect that. however, efforts were fruitless.
In reaching my decision, I have had regard for the written and oral submissions prepared by the representatives. I have had regard for all witness evidence given under oath.
From the very beginning, I must share with the parties that you have both brought a very unusual and dare I say unique employment relationship, in terms of “the lull 2019 -January 2022” to the attention of the WRC.
In the beginning, in September 1998, the complainant worked as a porter in a hospital before transferring without a break in service to a vastly different job as pest control technician.
For me this meant, he had a knowledge of how a cross service transfer worked.
It was undisputed that he went on to build up a competence and confidence in the role of Pest Control Technician until an interpersonal This was some 18 years into his tenure and caused him a period of 6 months paid sick leave.
When he returned to the workplace, the colleague with whom he had the staff relations difficulty had assumed higher duties and the complainant formed a view that he was being managed out. I was struck by the detail in the letter dated 22 September 2020 and find that it was an objective chronology of reasons for changes in the service.
The complainant had challenged an attempt to return him to the portering team in the acute hospital and pressed on with a grievance during September 2020. While the grievance, in which he seems to have been unrepresented was not upheld, the respondent seems to have channelled considerable energy in explaining that the area of community-based pest control had changed and constructed an alternative position in pest control, albeit in a service for older persons.
It is not lost on me that the complainant was not a regular attender at work over a 3 year period .This was underpinned by a period of full pay and other benefits .I worked with the parties to compile an organisational chart and can see clearly the exodus of key players during this period, which also co-incided with the national covid pandemic .This may go some way to explaining this unusual work pattern .
While I appreciate that all the management team around the complainant seemed to retire, this situation was in in dire need of Senior Officer review and action, long before Mr O Sullivan took up the baton as head of division. This was a seismic omission by the Respondent.
For me, at least, I observed that the complainant effectively shrank in the workplace from 2018 onwards. He missed so many cues and opportunities for development, which allows me to conclude that by deciding to navigate his issues alone, he did himself a disservice. He personalised the impact of interpersonal conflict which blinded him to the real changes in service which were underway.
It is important for me to understand that the interpersonal issue did not go to investigation under Dignity at work and was not elevated by the complainant beyond an unsuccessful mediation in 2018.
By 2018/2019, the redeployments proposed were subject to the Public Service Agreement, complete with an appeals process.
This was not activated by the complainant, nor could I see its circulation by the respondent. Instead, I can accept that the complainant drifted along in post name only but importantly demonstrating a versatility when he took on deliveries.
I found the complainants response to the proposed redeployment to pest control older persons service to be nothing short of bizarre.
Here was a dream job with, I appreciate challenges ahead, but if past behaviour is meant to be a guide to future performance, the transition was do -able for the complainant.
Once more, he shrunk from view and did not formalise his objection through procedures known to him. Instead, he pointed to a number of reservations in the role and circulated those reservations widely. For my part, I found he protested too much here. The reservations did not fit.
I could find no record of mental health history or diagnosis in this case. I note that the complainant has not advanced a personal injuries case.
Instead, the complainant confirmed a history of hypertension as the reason for his past health issues and hospitalisation. He did not advance any medical reports and he did not advance his commitment to provide a statement of earnings in this case outside of what was paid by the respondent to January 31, 2022.
My experience of poor mental health in the workplace, while personal to the person, it can of course serve as a boulder to progress. However, that is when it is evidenced based and supported by treating doctors /psychologist / community nurses /social workers / therapists.
Mental health is defined by the World Health Organisation as,
“a state of well-being in which every individual realises his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community.”
The Complainant did not put forward any evidence or exhibit reports of his condition, which he clarified was not diagnosed. Instead, I am left to consider a reported frailty in mental health, which was not independently verified.
I have no evidence of poor mental health in this case during almost 24 years of employment. Instead, the complainant understood he had a condition which prevented him from engaging with his employer and relied on this to the conclusion of his employment.
I cannot accept his evidence here.
I equally found his reluctance to attend Occupational Health to be very strange and a defined spanner in the case. I did not accept his reasoning for nonattendance. Once more, my experience of the Occupational Health is one of objective support with a delegated authority to assist an employee to navigate difficult situations at work.
I found Mr O’Sullivan’s evidence in that regard to be compelling when he said that “we did everything we could “in terms of offering an OHD/ EAP referral. I find that the fault line occurred in this relationship a long, long time before June 2021 and ought to have triggered a much earlier intervention as by then the level of non-attendance at work had entered a “chronic “zone.
I say that is regrettable that the complainant was not represented during that period.
The Complainant told the hearing that by the time he received the proposal to redeploy to older persons service, he had completely lost trust, however I am struck by his inaction to save his employment. Given the quality of the band 2 position with commensurate benefits, that omission is profound, in my mind. The complainant has not advanced a complaint of constructive dismissal.
Throughout this case, I have detected a trail of defiance on the complainant side, however the defiance was not accompanied by a defined strategic action of resolution, simply protest and disengagement.
Parties, I must conclude that having listened carefully to everyone at hearing and having reflected on what I heard, I must conclude that what I am seeing here is an incidence of “a quiet quitting “or associated burn out rather than a concerted effort to work with the respondent to at the very minimum try the pest control job.
That was the reason that I wanted the parties to convene to see if they could resolve the matter informally. The parties had many years in a shared employment zone, and it seems unusual that the tools of resolution previously used by the complainant of mediation, sick leave, transfer, occupational health department and grievance were so solidly parked by him from 2021 onwards.
Instead, he simply left the pitch.
My feedback is not exclusively directed at the complainant. I found the management of the complainant from 2018 to 2021 to be “light touch “in the extreme and my only hope that there is no other comparable situation at play in this workplace, nobody should be left behind in this manner.
My attention was drawn to the complainant’s evidence that he was legally represented from February 2022. My inquiry did not guide me to a discovery of earlier representations on this issue prior to the date of the first WRC on 2 March 2023. In light of the clear impasse in the case, it may well have assisted the parties to sit down and tease out a framework on which to progress prior to referral to the WRC.
I have been requested to make a number of decisions in this case and will now apply the law to the facts of the cases as presented by the parties.
1 CA-00048902-001 Payment of Wages Act, 1991
This complaint was received on 2 March 2022 and referred to a deduction in wages from 31 January 2022. I did not receive sight of the complainants’ earnings either through social welfare or otherwise governing this period.
Section 5(1) of the Act prohibits a deduction in wages.
Regulation of certain deductions made, and payments received by employers.
5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
(c) in the case of a deduction, the employee has given his prior consent in writing to it.
I take the respondent reliance on Sullivan on properly payable. I would also draw the party’s attention to the High court in Balans v Tesco Ireland ltd [2020] IEHC 55, which clarifies that I must first establish the wages which were properly payable, prior to considering whether a deduction has been made.
Both parties accept that the complainant had a contract of employment with the respondent, albeit no written version was exhibited. The Complainant said that he was provided with a contract as a Porter. This contract is underpinned by a mutuality of obligation. First, the respondent has to provide the work and second, the complainant must undertake to complete the work, the end result is pay and commensurate benefits.
The Complainant had maintained a tenuous link to his employment from 2019 to 2021. During this time, he received full pay. By January 2022, the respondent, mindful of the changed service in pest control had offered two redeployments, neither of which were acceptable or channelled through a third party or internal appeals mechanism.
The Complainant did not come to work or complete work during the period he has claimed. Instead, he was recorded as absent without leave.
While I accept that the respondent had previously paid the complainant for very little productivity, they did not err when they decided to give notice that that situation would have to end. The Respondent is a public body and answerable to the State.
As the complainant did not perform any work for the respondent from January 2022, or produce documentary evidence of absence through illness, I must find that he cannot have a realistic expectation to be paid for the period January 31, 2022, to March 2, 2022.
I must add that I was not satisfied that the complainant did not submit an internal grievance prior to making a referral to the WRC on this very point.
The claim is not well founded.
2 CA-00048902-002 Organisation of Working Time Act, 1997
The Complainant has claimed accrued but untaken annual leave, while still an employee on March 2, 2022.
At hearing the Respondent demonstrated that they had settled annual leave cumulative payment as cesser pay in August 2022 at 377.68 hrs. The complainant accepted that he had received payment in September 2022.
I have not found that any annual leave entitlement accrued from January 31, 2022, onwards.
This claim has been resolved through the contents recorded on HR 106 email.
The claim is not well founded.
3 CA-00048902-003 Organisation of Working Time Act, 1997
The Complainant has not particularised this claim. He said in evidence that he normally received a day off in respect of a public holiday.
Section 21 of the Organisation of Working Time Act 1997 sets out the provisions on public holidays.
Entitlement in respect of public holidays.
21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
(a) a paid day off on that day,
(b) a paid day off within a month of that day,
(c) an additional day of annual leave,
(d) an additional day’s pay:
Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.
The complainant was on the pay roll up to January 31, 2022.
The cognisable period for this claim is September 3, 2021, to March 2, 2022. The complainant did not accrue public holiday entitlement post January 31, 2022.
I have not found reference to payment for public holidays on the HR 106 email.
I find this amount to a contravention of the Act.
I find the claim is part well founded for the period 3 September 2021 to January 30, 2022.
1 CA-00051241-001 Payment of Wages Act, 1991
The claim for nonpayment of wages was received on June 20, 2022, and referred to the contravention as having occurred on 31 January 2022.
I did not receive sight of the complainants’ earnings either through social welfare or otherwise governing this period.
Section 5(1) of the Act prohibits a deduction in wages.
Regulation of certain deductions made, and payments received by employers.
5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,
(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or
(c) in the case of a deduction, the employee has given his prior consent in writing to it.
I take the respondent reliance on Sullivan on properly payable. I would also draw the party’s attention to the High court in Balans v Tesco Ireland ltd [2020] IEHC 55, which clarifies that I must first establish the wages which were properly payable, prior to considering whether a deduction has been made.
Both parties accept that the complainant had a contract of employment with the respondent, albeit no written version was exhibited. The Complainant said that he was provided with a contract as a Porter. This contract is underpinned by a mutuality of obligation. First, the respondent has to provide the work and second, the complainant must undertake to complete the work, the end result is pay and commensurate benefits.
The Complainant had maintained a tenuous link to his employment from 2019 to 2021. During this time, he received full pay. By January 2022, the respondent, mindful of the changed service in pest control had offered two redeployments, neither of which were acceptable or channelled through a third party or internal appeals mechanism.
The Complainant did not come to work or complete work during the period he has claimed. Instead, he was recorded as absent without leave.
While I accept that the respondent had previously paid the complainant for very little productivity, they did not err when they decided to give notice that that situation would have to end. The Respondent is a public body and answerable to the State.
As the complainant did not perform any work for the respondent from January 2022, or produce documentary evidence of absence through illness, I must find that he cannot have a realistic expectation to be paid for the period January 31, 2022, to June 20, 2022.
I must add that I was not satisfied that the complainant did not submit an internal grievance prior to making a referral to the WRC on this very point.
The claim is not well founded.
2 CA- 00051241-002 Organisation of Working Time Act, 1997
I am satisfied that the matter of all outstanding statutory annual leave was addressed directly with the complainant as cesser pay under the Act in September 2022 through the HR 106 email reference presented at hearing.
There was no accrual of annual leave from January 31, 2022.
The claim is not well founded.
3 CA-00051241-003 Organisation of Working Time Act, 1997
The Complainant has not particularised this claim. He said in evidence that he normally received a day off in respect of a public holiday. This is a duplicate to CA-00048902-003
Section 21 of the Organisation of Working Time Act 1997 sets out the provisions on public holidays.
Entitlement in respect of public holidays.
21.— (1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
(a) a paid day off on that day,
(b) a paid day off within a month of that day,
(c) an additional day of annual leave,
(d) an additional day’s pay:
Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.
The complainant was on the pay roll up to January 31, 2022.
The cognisable period for this claim is November 21, 2021, to June 20, 2022. The complainant did not accrue public holiday entitlement post January 31, 2022.
I have not found reference to payment for public holidays on the HR 106 email.
I have already addressed this in CA-00048902-003
The claim is not well founded.
CA-00051241-004 Unfair Dismissal
The Complainant has submitted that he was unfairly dismissed by the Respondent on June 7, 2022. The complaint came to the WRC some 13 days later and was not prefaced by an appeal or dialogue of any kind at base.
The salary attributed to this job was €37,735 per annum and this ceased in payment from January 31, 2022, from when the complainant’s employment record was that of AWOL (absent without leave) There were no corresponding sick leave documentation or records.
Both parties engaged in inter party correspondence during 2021 and up until June 2022 which on the respondent side was informed by an expectation that the complainant would return to work and by the complainant side by a repeated declaration of unavailability to meet with the respondent.
There is no documentation recording a resignation (a voluntary action initiated by the complainant) or a termination/ dismissal, an action directed by the respondent which brought the employment to an end.
Instead, I have a dossier of correspondence which culminated in two key emails of 7 and 8 June 2023 by the parties. I also have evidence of two completely divergent views on what occurred so as to conclude the employment.
I must now decide whether the complainant was unfairly dismissed. Despite the legal submissions which emanated from the Respondent, the complainant has not made a complaint of constructive dismissal, therefore Berber is not instructive here.
The first hurdle in a claim for unfair dismissal is an acceptance that a dismissal actually occurred.
Dismissal is defined in Section 1 of the Act as:
“dismissal”, in relation to an employee, means—
(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or
(c) the expiration of a contract of employment for 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.
“employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative.
It is important for me to analyse this employment relationship in particular from September 2020 onwards. This was the genesis of the offer of redeployment to older person services which replaced the initial redeployment back to Portering services. From September 2020 onwards, I can see that the Respondent actively engaged with the complainant. This was not reciprocated.
I can see that they wanted the redeployment to work and in particular am struck by the preparation for the proposed meeting of February 16, 2022, called off at the last minute by the complainant due to his mental health difficulties.
A month passed and a further letter issued from respondent to complainant dated 10 March 2022, which, in my opinion constituted a plaintive plea to respond to the reported boulder to progress advanced by the complainant, as that of mental health.
The Complainant responded the next day with a stark declaration that he could not meet Occupational Health “or anyone within the HSE, due to mental health. This letter was a mirror image of the 15 February 2023 response by the complainant.
Twenty-one days passed before the Respondent once more set out their stall on the complainant’s employment status and “the actions I have taken to date to secure your return to the workplace”.
1 redeployment to pest control on same terms and conditions as before
2 a review of job description and changes made.
3 A formal instruction to attend work prior to cessation of pay in January 2022
4 AWOL status
5 Activation of attendance policy with OHD referral
6 a repeat request to attend occupational health service.
This time, the respondent placed a stark and unequivocal statement at the base of the letter, which sought response by close of business on 7 April 2022
If you choose not to go to Occupational health and continue to refuse to engage in any efforts to return to the workplace with manager S, the HSE will have no option but to take it that you no longer wish to continue with your employment within the HSE
The Complainant responded at 9.43 on April 8, 2023, and side stepped the issue of the direction to return to work when he said.
“I received your letter dated 31 March 2022, insisting again that I attend Occupational Health. I say again that I cannot attend a meeting with Occupational health or anyone within the HSE at this time and I explained why in my previous email to you. I am not going to attend occupational health and will take the consequences of not doing so. So, please do not ask me to do what I cannot do at this time. It is not a question of choice. I told you what I’m going through in my last e mail to you.”
What followed from the respondent was dated 7 June 2022 but incorporated reference to the 8 April email from the complainant. This letter confirmed that the respondent had formed the view that the complainant “no longer wish to continue with your employment within the HSE.”
Some days later on June 14, 2023, the complainant registered that he was shocked and appalled to receive the letter of dismissal, which he recorded as unacceptable. No next steps were taken by him, and the employment seemed to formally close during June 2022, at that point when the annual leave was calculated, and pensions contacted the complainant.
I could not find anything outside the statement of displeasure which sought to counter the perceptions of the HSE on the complainant’s perceived resignation.
It may have been helpful if an exit interview was conducted. It may have been helpful if the HR 106 administrative record of leaving had been exhibited at hearing.
Given that the complainant was represented throughout this period, I am surprised that a counter argument to the letter of June 7, 2022, was not made.
The Respondent has relied on Karpiej at the Labour court, while the ceremonial circumstances of leaving are distinguished from the instant case, the Court found that the complainant uttered words synonymous with resignation.
The cases relied on by the complainant did not lead me to identify a case on point with the circumstances portrayed in the instant case, where no words were uttered which in essence amounted to dismissal, but the complainants’ actions of defiance and purposeful distancing from 1:1 dialogue with his long-term employer spoke volumes to me.
I have reflected on the facts and find that the complainant walked away from his position with the respondent when he refused to take his place in the employment kept open for him with offers of supports. I note that his reference to ongoing GP visits did not manifest into a medical report to counter his refusal to go to OHD.
I cannot accept that his absence was due to sick leave. I have found that a repudiation of contract followed the incremental distancing of the complainant from the workplace, when he refused to engage with his employer for a variety of stated reasons. He failed to use the respondents’ tools of resolution repeatedly offered to him through grievance, OHD/ EAP, redeployment, re training, attendance policy or representation.
Given that the complainant gave evidence that he managed to relaunch in training and development after the cessation of employment, I found his evidence inconsistent on this topic.
I have found that the Complainant entered a long walkway towards a long goodbye from 2019 onwards. He did not equate his distancing to Covid, but the circumstances co-existed with the pandemic.
Instead, he simply stayed home when he was required to work and that formed an unbridgeable chasm between the parties by June 7 , 2023 when the complainant totally withdrew from the redeployment and did not fall back on any of the appeals mechanisms permitted in the Public Sector Agreement.
While, I would have preferred to see the Respondent intervene much earlier in this most irregular record of employment, I cannot establish that the complainant was dismissed by the respondent.
Instead, by his words and deeds, the complainant abandoned his position through the repudiation of his contract. He blocked his employer out from his life once pay ceased on January 31, 2022. This conflicts with the principle of mutuality of obligation, vital to an employment relationship.
I have not established a dismissal in this case. I am prevented from pursuing the case through to a consideration under Section 6.
Based on a full assessment of the circumstances surrounding the cessation of employment, I find that on this occasion, the Complainant was not unfairly dismissed.
6 Ca-00051241-006 Minimum Notice
The Complainant has claimed 8 weeks minimum notice in accordance with Section 4 of that Act.
I take my jurisdiction in this claim from SS 4 and 12 of that Act.
Minimum period of notice.
4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.
(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—
………….
(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.
I have found that the Respondent did not terminate the employment, but rather a repudiation of contract occurred. Therefore, there is no liability for payment in lieu of notice.
The claim is not well founded.
Decision:
CA-00051241-004 Unfair Dismissal
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have found that the complainant was not dismissed. Therefore, he was not unfairly dismissed in accordance with Section 6 of the Act.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaints in accordance with Section 5 of that Act. CA-00048902-001 Payment of Wages Act, 1991 I find the claim is not well founded. CA-00051241-001 Payment of Wages Act, 1991
I find the claim is not well founded.
2 CA-00048902-002 Organisation of Working Time Act, 1997 Section 27 of the Organisation of Working Time Act, 1997 requires that I make two decisions in accordance with Section 19 of that Act.
I find the claim is not well founded.
3 CA-00048902-003 Organisation of Working Time Act, 1997 I have found the claim to be part well founded. I order the Respondent to pay the complainant €1.200 in respect of a breach of section 21 of the Act of payment for public holidays which fell during the cognisable paid period of employment.
CA- 00051241-002 Organisation of Working Time Act, 1997 I find the claim is not well founded.
3 CA-00051241-003 Organisation of Working Time Act, 1997 I find the claim is not well founded.
CA-00051241-006 Minimum Notice Section 12 of the Minimum Notie and Terms of Employment (Information) Act 1973 requires that I make a decision in accordance with Section 4 of that Act. I find the claim is not well founded.
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Dated: 12th October 2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Cessation of employment |