Complainant

Respondent

Parties

A Journalist

A News Agency

Representatives

Shay Fleming, Solicitor of Shay Fleming & Associates Solicitors

Valerie Morrison of Peninsula Business Services Ireland

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-00040430-001

15/10/2020

The issue in contention was the alleged Constructive Unfair Dismissal of the Complainant, a journalist, by a Media/News Reporting Company. The principal place of work was the Criminal Courts of Justice building. (for Convenience abbreviated to CCJ building.)

It was stated that the employment began in September 2014 and ended on the 17th April 2020.

The rate of pay was stated to have been approximately €650 for an approximately 36/37-hour week.

1:1         Evidence presented

The Complainant gave an extensive Oral Testimony supported by a very detailed written Submission. The chief spokesperson was Mr Fleming, Solicitor.

In essence the Complainant’s case was that the Respondent Employer completely failed in their proper legal duty of care, as implied in the Contract of Employment, to the Complainant during the early phases of the Covid 19 Pandemic in 2020. Extensive reference was made to Health and Safety Legislation especially the S, H & W, Act,2005, various Statutory Instruments made under that Act and what was deemed to be good common practice.

The Complainant had, by e mail of the 3rd April 2020, raised his concerns regarding the Covid situation in the CCJ. It was a large building with many people present on a daily basis. It appeared that little regard was being taken of any Social Distancing or other Covid defence measures in the CCJ environment. There was a real risk of contracting the virus in such a setting.

The Employer responded on the 4th April 2020 indicating that the CCJ building and the Covid defence measures therein was the responsibility of the Courts Service. The Employer had been in contact with the Court Service in late March and was reassured that the Covid issue was being handled satisfactorily.

The Complainant stated that he felt that this response was completely inadequate and fell far short of what was required by the Safety, Health and Welfare at Work Act,2005.  The Complainant was entitled to a “Safe place of Work”. The Complainant had never been consulted, as was legally required, regarding the contacts with the Courts Service and all training and instruction, again as legally required, was lacking. The issue of who paid for Protective measures, sanitiser sprays, masks etc was left vague and no Sick pay for Covid absences was agreed. Professional colleagues, of another Press Agency, in the same Press Office were allowed work from home while it was said that staff of the Respondent were required to attend daily. The clear inference from the Respondent was that maintaining commercial revenue was the primary Management issue regardless of staff welfare.

The Risk Assessment carried out on the 9th April 2020 was completely inadequate as it appeared to have ignored or been unaware of the Biological Agents Regulations of 2013. None the less, Mr K, from the Respondent mailed all staff with a document “Protocols” setting out the Respondent proposal regarding H & S and Covid.  Realistically this was a hurried Cut and Paste job that failed to properly recognise the seriousness of the situation. The issue of Vulnerable personal contacts was not addressed -the Complainant had elderly Parents. His father was extremely vulnerable.

Frustrating e mail correspondence between the Parties followed.

On the 17th of April the Complainant, tendered his resignation at 15:15 hours. This was out of a total sense of complete frustration with the Respondent Company and its manifest failures to provide a Safe Place and System of Work for the Complainant. There was no effort by the Respondent employer at personal contact to discuss the issues or availing of any Grievance procedures.

At 15:16 the Complainant sent a broadcast e mail to all News Desks informing them that he was no longer with the Employer but would continue as a Freelance.

At 18:22, Mr K, replied accepting the resignation. At 18:26 the Respondent issued a broadcast e mail to all Newsdesks advising them that the Complainant was no longer an employee of the Respondent.

None the less the Complainant felt that the Resignation should not have been accepted so readily by the Respondent and that there was a possibility of resolving issue at the date of the WRC Referral -the 15th October 2022.

In his Oral Testimony the Complainant stated that he really enjoyed the work and had no major issues with the 2 Directors prior to Covid. However, he strongly felt that they had not taken Covid seriously enough and had kept the employees in the dark. There had been a most convenient public reliance on general CCJ Management statements etc as a means of shirking their Legal responsibilities as employers. The PPE issue was handled clumsily, and no sick pay was offered in the event of a Covid absence. There was no effort made to keep employees “on side” by simple communications. As an employee he should not have had to “Raise the Alarm” regarding covid. He felt that this was an example of how badly the Directors were running the business.

The Directors exhibited a very “negative state of mind”. The swift acceptance of his resignation was completely unreasonable – he stated that “No reasonable employer would have accepted my resignation”.

1:2       Closing summary

In final summary Mr Fleming, the Complainant Spokesperson, addressed the standard Constructive Dismissal tests of Breach of Contract and Unreasonable Behaviours. The contract of Employment had been irrevocably breached by the cavalier attitude of the Employers both to their Statutory H &S Duties and implied contractual obligations to the Employee. The Unreasonable Behaviours had been highlighted by the lack of any consultations with the Complainant, the alleged frankly fraudulent Risk Assessment /Protocol documents and especially by the unseemly haste in accepting the Resignation.

All things considered it was a clear case of Constructive dismissal.

Significant case law precedents were cited especially Berber v Dunnes Stores Ltd [2009] 20 ELR 61, Mr O v An Employer (No 2) [2005] 16 ELR 132 and T.E. Laboratories v Mikolajczyk [2019] JIEC 1102 in support of the Breach of Contract and Reasonableness of Behaviour arguments in a Constructive Dismissal case.

The Complainant was extensively cross examined by Ms. Morrison for the Respondent.

2:1        Evidence presented.

The Respondent gave an Oral Testimony from Mr K, the Director, supported by a Written Submission. The chief spokesperson was Ms Morrison of Peninsula.

The essence of the Respondent arguments focused on the constructive Dismissal issue and the commonly accepted legal tests of Unreasonable Behaviour and Breach of Contract.

On both these grounds the Complainant had no proper case. Significant Legal precedent cases (listed below) were relied upon in support.

The Respondent was very complimentary of the excellent work record and quality of journalism of the Complainant. They were genuinely surprised by his resignation. In the Oral testimony from Mr K, he stated that the Respondents were “Reasonable people” and issues involving Covid could easily have been sorted out. The allegations of a lack of communication with the Complainant was pure assumption on his part. Post the Resignation on the 17th of April 2020 Mr K had tried to establish a direct face to face communication with him but had been rebuffed.

The facts as seen by the Respondent were that they had contacted the Court Service, on the 30th of March 2020, re the CCJ building situation and expressed serious concerns regarding how Covid Prevention was being handled. Covid was new to all in the Country and the Respondent could only be guided by the publicly available advice from the HSE and the Government. In this case the Courts Service were responsible for the CCJ building and the Respondent would have to be guided by this.

On the 4th April the Respondent e mailed the Complainant acknowledging the concerns raised but again referring to the Court Service as the ultimate authority over the CCJ building.  The Complainant was granted leave /time off from the 3rd of April to the 20th April.

On the 9th April the Complainant contacted the Respondent by e mail to express his concerns that his anxieties over PPE and a safe System of Work were not being addressed properly. The Respondent had in the interim taken professional advice and issued a Risk Assessment with further Health & Safety Protocols for all staff. The Respondent asked on the 16th April, the Complainant, if he was now happy to return to work in the CCJ on the 20th April 2020. Numerous exchanges of e mails followed but by e mail of the 17th April at 15:15 the Complainant stated.

“D, B (Directors of the Respondent)

Following the exchanges between us, I’m not happy about the way the business is being run as it affects me and I make the decision to resign which I do now.”

Less than a minute later at 15:16 the Complainant sent a broadcast email to all News desks informing them that he had ceased to be employed by the Respondent but would continue to file Court reports. In the following week Mr K tried to contact the Complainant, without success, and approached him directly in the CCJ building on the 22nd of April. The Complainant indicted that he did not wish to talk to Mr K. An offer of Mediation was made by a Party, well known to both sides, but this was also declined.

Per contractual requirements the Respondent was obliged to inform all Newsdesks that the Complainant was no longer an employee of their Court Reporting service, and another journalist would provide the required copy.

In Legal precedents the Respondent argued strongly that the bar for Constructive Dismissal is “High” and essentially “egregious” breaches of employment contract have to be clearly seen in evidence before a complaint can be sustained on the Breach of Contract Grounds. Likewise Unreasonable Behaviours have to be exactly that “Unreasonable” to a very bad degree indeed.

Neither applied in this case and the Constructive Dismissal case has to fail.

Precedent cases relied upon included Coffey v Connect Family Resource centre (UD 1126/2014), A GO v A Religious Society (ADJ -00002814), Ruffley v St Anne’s School [2017] IESC 33 and Higgins v Donnelly Mirrors Ltd (UD 104/1979).

In cross examination from Mr Fleming for the Complainant, Mr K, was asked regarding his qualifications in the H & S area particularly as regards the Safety, Health and Welfare at Work Act,2005. Mr Fleming queried if Mr K was a “Competent “person as required by the Act to oversee H & S matters. The provenance of the Risk Assessment was strongly queried as were the Safety Protocols issued.

2:2        Closing Summary

Ms Morison summed up the Respondent case as one where the Respondent Directors had at all times been eminently reasonable and had gone out of their way to facilitate the Complainant. He had proved unreasonable both before and after the e mail resignation of the 17th April. He was immediately back at work as a Freelance the following week which seriously questioned his almost “absolutist” attitudes to the Respondent prior to the 17th April.

As a Constructive Dismissal case it had no strong legal foundations on any of the accepted Constructive Dismissal Tests. It had to fail.

3:1        The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation, Duty of Care / Implied & Statutory and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “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,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

 The reasonableness test assesses the conduct of the employer 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.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

 She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The Tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

 “the Respondent company acted unreasonably in its dealings with the claimant, and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.

The Legal commentary also raises the key question of what is the “implied” duty of care to an employee in any contract of employment especially where a Constructive Dismissal case on Breach of Contract is being argued. The issue is discussed extensively by Dr Des Ryan in Redmond on Dismissal Law, 3rd Ed, 2017 at Section 19.08 -19.20. This legal issue was of particular relevance during the Covid Pandemic. The Irish case of Higgins v Donnelly Mirrors Ltd UD 104/1979 was referenced by Dr Ryan. Here the implied Terms was “Mutual respect”. Considerable UK case law is also cited. However, at P 435 [19.10] Ryan states

“Difficulties may arise, however, where constructive dismissal is alleged in the face of breach of an implied term. An employee may encounter problems in identifying such terms, although the process has been facilitated by a change in judicial attitude to the status of the employment relationship.”

Ryan at P 436 cites among examples “a safe place of work” and refers to considerable case law from both Ireland and England leading from Maddy v Duffner Bros Ltd UD 803/86.

The issue canvassed, likewise, by the Complainant in this case essentially resolved around the question of the CCJ Building as a “Safe Place of Work”.

However, as in all interpretations of Legal commentary such as in Redmond on Dismissal Law cited above the context of each case has to be seen as central.

Covid 19 was a completely new phenomena in Ireland in March 2020. It was an area that Employers and also Employees had to be guided upon by the Public Authorities such as the Department of Health and the HSE. In reviewing the situation, with the benefit of hindsight from 2023, an important question is to what extent Section 8 of the Safety Health and Welfare at Work 2005 could be seen as the overriding Authority in determining any Duty of Care for an Employer. On a practical basis what was a “Safe Place of Work” in Covid times, was effectively in late March 2020, (the time of the key issues in this dispute) a public definition evolving on a daily basis.

Another key factor was the fact that the CCJ Building was not the Complainant’s Employer. It was a place he visited daily but was under the control of the Courts Service.

Making the building “Safe” was the function of the Courts Service not the Respondent Employer in this case.

Section 15 of the Safety, Health and Work Act,2005 covers this point.

General duties of persons in control of place of work, etc.

15.— (1) This section applies to a person who has control to any extent of—

(a) a non-domestic place of work that has been made available as a place of work to persons other than employees of the person to whom this section applies,

(b) the means of access to or egress from that place of work, or

(c) any article or substance provided for the use of persons at that place of work, other than employees of the person who has control of the article or substance,

including a person who has control of a place of work or part of a place of work in connection with the carrying on by him or her of a trade, undertaking or business (whether for profit or not).

(2) Where a person has, by virtue of any contract, tenancy, licence or other interest, an obligation to any extent—

(a) to maintain or repair a place of work or the means of access thereto or egress therefrom, or

(b) as regards the safety of, or the absence of risk to health arising from, any article or substance provided for use in, that place of work,

the person is deemed, for the purposes of this section, to be a person to whom this section applies to the extent of his or her obligation.

(3) A person to whom this section applies shall ensure, so far as is reasonably practicable, that the place of work, the means of access thereto, or egress therefrom, and any article or substance provided for use in the place of work, are safe and without risk to health.

The question of the Respondent’s implied duty of care, as effectively a secondary subordinate Party to the Courts Service, has to tempered by this fact.

Notwithstanding Legal commentaries as set out above all cases rest on their own facts and particular evidence. This has to be considered below.

As this is a Constructive Dismissal case the accepted standard Tests of (1) Breach of Contract, (2) Unreasonable Behaviour and the more recent Test of (3) Use/Non-use of Employment Procedures will be used as a Template.

3:2       Consideration of Evidence

3:2:1        Constructive Dismissal - Breach of Contract.

The standard employment requirements were accepted as normal. Wages etc were paid without complaint. There were no disciplinary issues.

As discussed above the key question was the Implied Duty of Care resident in every contract of employment.

The Respondent employer argued that it had taken all appropriate steps in this regard. They had contacted the Courts Service, the CCJ Landlords, at the end of March to ascertain the position and to raise their concerns regarding the large numbers of people milling about in the building.

In his Oral evidence the Respondent, Mr K, stated that he could only be led by the replies of the Courts Service and their Covid precautions. In his cross examination by Mr F for the Complainant it was clear that Mr K was not a scientific H &S expert and could not respond to detailed queries about Biological Agents etc being raised by Mr F. The Respondent replied to the E mail queries from the Complainant and published a Work Protocol/ “Covid 19 Suspected case Response Plan” in mid-April. Advice was sought from Peninsula Business Service and a Risk Assessment was produced. E mail correspondence of the 9th April / 16th April from the Respondent detail their attempts to address the Complainant’s concerns. An e mail discussion took place regarding the Respondent’s Safety Statement and the Risk Assessment carried out. From the Cross examinations and the Oral testimony, it was clear that the Respondent was playing catch up here. They were a News Reporting Service and a Safety Statement, while in existence, was quite generic.

A key issue was the fact that the Respondent allowed the Complainant to be on Leave at Home from the 4th April to the 20th April 2020.  He was not physically present in the CCJ for most of April. It is worth noting that this was a fairly reasonable position for any employer to adopt.

 The Complainant insisted, for covid safety reasons, on all communications being electronic. This, in the view of the Respondent, Mr K, made efforts at normal face to face discussions, which had been the norm prior to Covid, very difficult.  The issue became the terms and conditions, the H &S issues, of the Complainant’s return the CCJ.

On the morning of the 17th April at 11.59 Mr K sent a mail to the Complainant effectively allowing him to leave the CCJ Building for a 40-minute break if the Covid Social Distancing arrangement were not working out satisfactorily on his return to the CCJ building. This was a proposal made prior to the Complainant actually physically returning on the proposed date of the 20th April.

Legal Precedents dating back to Sharpe v Western Excavating Ltd [1978] 1 All E.R. 713clearly state that the Breach must be “fundamental”- going to the “root of the contract.”

A Reasonable Observer approach is necessary. The Oral testimony of the Parties is also critical. The Respondent repeated stated that they were “Reasonable People” who had enjoyed a long and fruitful relationship with the Complainant. The Complainant while agreeing that there was no personal animosity expressed deep fear regarding Covid and his very vulnerable Parents. He repeatedly stated the number nationally who were dying due to Covid on a daily basis. However, this was not something the Respondent had any influence over.

His H & S requests (Documentations etc) to the Respondent, while perfectly legal and acceptable, appeared to give little room to the Respondent, a News Agency not a large Chemical or Engineering Facility used to these types of scientific enquiry.

From a point of view of “Reasonableness” it has to be observed that all Employers, at this time were in a similar position. They could only do what was possible to a normal standard and rely on HSE/Dept of Health guidance which was evolving on a daily basis. The oft referred to “Band of Reasonableness” argument, albeit on a slightly different context, can be cited here. To expect the Respondent employer, a “white collar” employer, to be intimately familiar with the SI Biological Agents Regulations of 2013 was unreasonable on the Complainant’s behalf.

The issue of the approach taken by a fellow News Agency was briefly touched upon. it appeared, from the Complainant that this Agency, had allowed staff to work from home in contrast to the Respondent.  This issue was unclear, and the discussion was ambiguous.

The alleged non-payment of Sick pay by the Respondent, in a covid absence was also raised. It appeared that this issue had never really been considered by the Respondent largely due to the completely unknows of the Covid situation. Payment or Non-payment of Sick pay is not really a Constructive Dismissal Breach of Contract where Sick pay was never the norm in the Employment.

In addition, being advised by the Landlords, the Courts Service, in relation to Covid guidance in relation to their CCJ Building and the daily operation of then Courts there was not unreasonable. Section 15 of the S, H & W Act, 2005, cited above, is useful here as a guidance.

There was also, as already cited above, the basic communications difficulty of the strong preference of the Complainant for all contacts to be via E mail and not face to face. There was a strong feeling from the Respondent that a face-to-face discussion could have improved matters greatly rather than relying on what were felt to be impersonal e mails.

On balance and reviewing the Duty of Care question in a contract of Employment situation, the Adjudication view has to be that Respondent achieved a reasonable standard, (bearing in mind the entirely new Covid situation and the overriding position of the Courts Service as the Landlords of the CCJ) regarding the Duty of Care. The Adjudication view has to be that the Respondent acted in keeping with general Employer behaviour, across all Industry, in the very unprecedented Covid situation, took HSE& Govt advice and sought assurances from the Court’s Service. It is hard to see, applying a reasonable standard, that this was in some way a breach of any implied duty of care ( occasioned by not going deeper into Covid science) such as to give a “fundamental breach” of the Contract sufficient to sustain a Constructive Dismissal case.

In summary the Breach of Contract Test in a purely Constructive Dismissal context is not in the Complainant’s favour.

3:2:2        Constructive Dismissal – Unreasonable Behaviours by either side.

As stated above in Section 3:1 the Unreasonable Behaviours have to be abominable – egregious is the word often used.

From the Written evidence and the Oral testimony there was no evidence of egregious behaviours by either side. There was certainly a vigorous e mail traffic but nothing that would suggest a Constructive Dismissal response.

An issue was the resignation e mail of the 17th April at 15:15 hrs.  It was stated by the Complainant that the Respondent had been “Unreasonable” in their quick acceptance of the Resignation. The Respondent in reply pointed to the broadcast e mail to all Newsdesks from the Complainant at 15:16 hrs.  This e mail was a very public statement by the Complainant of the ending of the employment and left little room for manoeuvre or possible reconciliation. Nonetheless the Respondent attempted to meet with the Complainant in the following week to seek a satisfactory solution. The efforts were rebuffed in the Respondent view.  It was a strong view that they had not acted Unreasonably.

In summary having reviewed all the Oral testimony and written materials the Adjudication view has to be that this Test – Unreasonable Behaviours - is not in the Complainants favour.

3:2:3        Constructive Dismissal – Use/Non-use of Employment Procedures

There was no lack of communication between the Parties prior to the 17th April. From the Oral testimony the Resignation took the Respondent by surprise. In the Complainant’s oral testimony, he had not been completely averse to resuming the Employment relationship in the immediate aftermath of the 17th of April. The Respondent, under Oath, stated that he had made a number of contacts to try and establish a face-to-face dialogue with the Complaint in following weeks but to no avail.

Regrettably the brief contacts did not improve matters.

The issue of the competing broadcast e mails on the afternoon of the 17th April appeared to have strained relationships and made a reconciliation difficult.

While no formal Grievance or other employment procedures were used there was extensive communications, albeit by e-mail between the Parties.  Overall, as a Constructive Dismissal test the use/non-use of employment procedures is ambiguous and favours nether side.

3:3         Constructive Dismissal Summary

To a “reasonable” observer or Adjudicator the constructive Dismissals Tests of Contract, Behaviour and Procedures do not fall in favour of the Complainant. It is well established Legal precedent that the “Bar is High” for a Constructive Dismissal case.

In this case the Oral Testimony and supporting written materials, while extensive, did not achieve the required high standards to support the Constructive Dismissal case.

Constructive Dismissal, Implied Duty of Care in an Employment contract, Health, and Safety