Complainant

Respondent

Parties

Ann  Doherty

St John of God

Representatives

Self

Cáit Lynch, IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00050590-001

11/05/2022

The Complainant alleges that she had to leave her job due to the conduct of the Respondent and that this amounts to constructive dismissal under the Unfair Dismissals Act, 1997

The Respondent refutes the claim in its entirety. It is the Respondent’s position that the Complainant resigned of her own volition and that the Respondent neither breached the Complainant’s terms and conditions of employment nor did it act unreasonably such as to allow the Complainant to seek relief under the Acts for constructive dismissal. The Respondent raised a preliminary issue regarding jurisdiction asserting duplication of proceedings.

The Respondent submits that the Complainant has previously taken a case under the Employment Equality Act 1998, ADJ-00029771, which was based on the same set of facts as this claim.  The Respondent asserts that, from the submission set out on behalf of the Complainant in the WRC complaint form, it is clear that her allegations with regard to the claim under both acts arise from the same set of facts; in point of fact the precise wording is duplicated in both claims, except for the final paragraph in the specifics of this claim under the Unfair Dismissals Act i.e. “Following this original submission I continued on leave having being signed off by SJOG’s own Doctor until the commencement of maternity leave. I awaited commencement of mediation services through the WRC which was set at 10/08.2021. My employer didn’t engage with the mediator in any capacity which confirmed to me that they had no willingness to resolve the matter. I felt I had been treated so cruelly by my employer that I had no option to return to my position and had effectively been constructively dismissed”.  

The Respondent submits that the additional paragraph serves as an extension to the earlier complaint of discrimination but does not distinguish one claim from the other.  The Respondent submits that, effectively, the claims are dual claims. 

The Respondent relies on the decision in Henderson v Henderson (1843) 3 Hare 100 which rejected the duplication of proceedings and wherein it was found that there should be finality to litigation (subject to appeal) so that a party should not be twice vexed in the same manner. 

The Respondent contends that the principle of non-duplication was further developed in Cunningham v Intel Ireland Limited [2013] IEHC 207 when Hedigan J noted that the Complainant had “attempted to draw an artificial distinction between her Equality Tribunal complaint and her Personal Injury proceedings” and ruled in favour of Intel observing that as a general rule of law “Thus all matters and issues arising from the same set of circumstances must be litigated in the one set of proceedings save for special circumstances“.

In Parsons v Iarnrod Eireann [1997] 2 I.R. 523 the High Court heard that the Complainant had been dismissed from his employment by the defendant and brought a claim for unfair dismissal under the Unfair Dismissals Acts. Subsequently he also issued proceedings in the High Court seeking a number of reliefs and in particular damages for “wrongful and/or unfair dismissal”.  Having considered the facts of the case before it and the relevant case law, the Tribunal determined that both cases were inextricably interlinked with bullying being at the centre of both actions. The Tribunal does not consider that there are “special circumstances” as referred to in the Cunningham case that would permit the High Court action and the unfair dismissals action to proceed simultaneously. Indeed, the Tribunal took the view that the Complainant was drawing an “artificial distinction” between the two actions. Neither does the Tribunal accept that the facts of the High Court case are “independent” of the unfair dismissal claim where a “claim might be pursued at the Tribunal”.

It would appear to the Respondent that both cases are inextricably linked with the same facts being at the centre of both actions. It is the Respondent’s view, therefore, that there are no special circumstances that could permit this case to proceed. 

The claim under the Employment Equality Act 1998, ADJ-00029771, was heard in the WRC on 30 November 2021. The decision which was arose therefrom was subsequently appealed to the Labour Court, and the Labour Court issued a determination on 23 February 2023 (ADE/22/42). The Respondent submits that this matter has been settled by the Labour Court as of 23 February 2023 which found that no less favourable treatment of the Complainant had occurred. The Respondent submits that this matter cannot now be revisited due to the principle of res judicata. 

The Respondent submits that in the circumstances, an Adjudication Officer does not have jurisdiction based on S.I.126/2016 and Section 101 (4)(a) of the Employment Equality Act 1998 to investigate the unfair dismissal claim, as the Complainant’s submission which grounded her employment equality claim is identical to the submission grounding this unfair dismissal claim and, therefore, clearly represents a duplication of claims.

Preliminary Issue: Duplication of Proceedings

Before considering the substantive issue, I must first consider the procedural point raised by the Respondent that this complaint is identical to another complaint previously submitted by the Complainant, albeit under a different act, which has already been heard and decided upon in the first instance by the WRC and, on appeal, by the Labour Court.  The Respondent contends that, in accordance with the juris prudence established under Henderson V Henderson and associated cases, the Complainant cannot have the same case heard again.

The term “res judicata” is the Latin term for “a matter (already) judged”.  The doctrine of res judicata prohibits the reopening of an issue between parties which has already been decided by a competent court or tribunal.  In Marie Cunningham v Intel Ireland Ltd [2013] IEHC 207, Hedigan J.held that “…all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances”.

The Complainant’s original complaint under the Employment Equality Act 1998 was received by the WRC on 21 August 2020.  A decision in relation to that complaint was issued by the WRC on 18 May 2022 which covered matters up to the date of submission of the complaint.  The WRC decision was subsequently appealed to the Labour Court and a determination in the matter was issued on 22 February 2023.  The Complainant’s complaint under the Unfair Dismissals Act 1977 was received by the WRC on 11 May 2022. 

I note that the Complainant had a period of employment with the Respondent which was not covered by her WRC referral under the Employment Equality Act 1998 i.e., from 22 August 2020, the day following the submission of the employment equality complaint, to 18 November 2021, the date of termination.  I accept the Respondent’s position that the wording in the two complaint referral forms submitted by the Complainant is identical save for an additional concluding paragraph in the second complaint referral form.  Accordingly, I find that the Respondent is entitled to rely on the doctrine of res judicata up to the date of the submission of the first WRC complaint referral form i.e., 21 August 2020.  However, I also find that the Complainant is entitled to submit a complaint under the Unfair Dismissals Act 1977 in respect of the period of employment which post-dated the submission of her employment equality complaint to the WRC.

For the avoidance of doubt or confusion, I am confirming that, in line with my reasoning as set out above, my investigation and decision in relation to this case is confined to the period from 21 August 2020, the day following the submission of the original complaint, to 18 November 2021, the date of termination.  I have, however, included background information covering the entirety of the Complainant’s employment with the Respondent to enhance the readability of this decision.  I have confined my summary of the witnesses’ direct evidence to the period covered by this decision.

The Complainant has worked for the Respondent since 2016.

The Complainant was on annual leave from 13 March 2020 to 20 March 2020 early in the Covid-19 pandemic. The Complainant contacted her Line Manager on 18 March 2020 to discuss her return to work the following week. She was 8 weeks pregnant and had a one-year-old daughter.  She did not know what options were available to staff but felt that she could work from home as she had a company smartphone with access to email.   Her Line Manager informed her that it was not possible for staff to work from home under any circumstances and that he himself was working from one of the Respondent’s locations at the time. He advised that the organisation would not approve any annual leave for staff during this period and that the Complainant could only opt for unpaid leave or redeployment to a residential setting. 

Working in a residential setting was not possible for the Complainant for several reasons including the lack of childcare. Due to the circumstances of her employment, she was not eligible for the Covid-19 payment and financially was not in a position to take an unknown amount of unpaid leave. After discussing her situation with her Line Manager, the Complainant felt she was left with no other option but to seek a sick cert from her GP.   

A new Supervisor was appointed to Employment Services with effect from 23 March 2020. The Supervisor had no access to Employment Services files as she was working from home. She asked the Complainant to email her a list of her supported people and their relevant information. The Complainant was happy help and undertook the work while on certified sick leave.  The Complainant did so as she felt that if it became possible for her to work from home, the Respondent would look favourably on her application.   To a point, the Complainant was happy to undertake this work.  But as the requests continued, she began to feel taken advantage of.

On or around 7 April 2020, the Supervisor contacted the Complainant by phone in relation to undertaking some work by email. The Complainant explained that her email password had expired and, as she had no access to the office, she could not reset it to access work emails. The Supervisor asked the Complainant to go to the office and reset her password. The Complainant agreed at the time, but after some reflection and a conversation with her husband, decided not to do so. The Complainant did not make the Supervisor aware that she had changed her mind. The Supervisor attempted to contact the Complainant by calling her personal phone several times leading up to 14 May 2020. The Complainant did not answer or respond to these calls.

Around 10 May 2020, the Complainant met up with a friend who also worked for the Respondent in a different location. He informed her that he had the option to work from home or on location. Other staff in his area were working remotely due to childcare needs or other caring responsibilities. The Complainant did not understand why she had been told that there was no work from home option for frontline staff. 

On 15 May 2020, the Complainant called her Line Manager to discuss the situation with the Supervisor. The Complainant explained that she was undertaking significant amounts of work, that clearly there was work for her to do and that she wished to do this work remotely like the Supervisor. Her Line Manager was very hostile towards her during the call. His response was that he thought that she was happy to be on sick leave and that he had not considered her for working from home. The Complainant became very upset and angry during the call, and it was clear to her that her Line Manager had no idea just how much work was being sent to her by the Supervisor.  The Complainant’s Line Manager advised her that there was no way she would be considered for remote working. The Complainant submits that the conversation was very heated. 

The Complainant submits that the situation caused a very significant deterioration in her mental health.  She was extremely upset, angry and stressed. She felt like she was being used and that she was being discriminated against as the Supervisor was given the opportunity to work from home and she was not. The Supervisor was a single woman without children, and as far as the Complainant could see, her lack of childcare was the reason she was not given the same option.

On 19 May 2020, the Complainant had a conversation with the Supervisor and was surprised to hear that, given her most recent conversation with her Line Manager, the organisation was willing to look at some form of working from home arrangement.  The Complainant explained to the Supervisor that she had a significant panic attack over the weekend.  The Complainant explained that this had been brought on by the situation she found herself in with the Respondent and the lack of fair and equal treatment she was experiencing. The Complainant thanked the Supervisor for looking at the possibility of her working from home but said that she was focusing on her wellbeing and spending time with her family. The Complainant said that she did wish to return to work prior to commencing maternity leave and that she would make contact to arrange this. The Supervisor was understanding, and the conversation ended on a reasonably friendly note. 

At a later date, the Supervisor contacted the Complainant to see if she would be returning to work.  The Complainant had the option to resume regular childcare from 10 August 2020 and so suggested that she return on 18 August 2020.  The Complainant explained that she was happy to undertake pick-ups and drop-offs to employment sites but wanted to ensure she could do so in her own car as this was an environment she could control. The Supervisor agreed.  The Complainant also said that she was happy to undertake work in the Employment Services office as it was a large office which was easy to ventilate. The Supervisor thanked the Complainant for her flexibility.

On 6 August 2020, the Complainant received a text message from the Supervisor to say that she was being redeployed from a non-public facing, remote office position as a Job Coach, to a very public facing, patient handling position in the least favourable location possible. Upon receipt of this message, the Complainant called the Supervisor immediately to discuss the matter.  The Supervisor told the Complainant that she was just passing on the message and she was unfamiliar with the plan. The Supervisor advised the Complainant to contact her Line Manager the next day and specifically advised her to call him after 16:30 as he was conducting interviews all day. The Complainant made several attempts to contact her Line Manager that day, including at the specified time. His phone went to voicemail on every occasion.

The Complainant was heavily pregnant and would have expected to be assigned desk duties at that late stage of pregnancy, and not to be assigned to a more labour-intensive role with increased service user involvement, especially during Covid-19.  The Complaint felt that she was being discriminated against because she had taken sick leave which she felt compelled to take due to her family status. On 14 August 2020, the Complainant was signed off as cocooning. It was the Complainant’s understanding that she would be paid as a cocooning member of staff as she had the necessary medical cert. 

On 27 August 2020, the Complainant discovered that her pay was significantly less than what it should have been, so she contacted HR. The HR staff member who dealt with her call did not tell her why she was on a reduced rate of pay but spoke about different levels of cocooning and the different expectations of staff who were cocooning based on their individual needs. The HR staff member asked the Complainant about her medical condition.  Despite advising the Complainant that she was not obliged to tell her, she continued to press the matter.  The HR staff member queried how active the Complainant was, for example, was she going to the shops for milk.  The HR staff member enquired about the Complainant’s daughter returning to crèche and advised her that she was not technically cocooning if that was the case.  The Complainant became very upset during this call.  She felt that she was being treated differently to other staff who were signed off as cocooning.  

On 30 August 2020, feeling very confused and angry over the cocooning issue, the Complainant sent an email to the HR staff member seeking clarification. The HR staff member responded with an invitation to meet with herself and the Complainant’s Line Manager.  Given her recent negative and heated experiences with her Line Manager and the HR staff member, the Complainant declined to meet with them in person.

On 8 September 2020 the HR staff member contacted the Complainant to discuss an occupational health assessment.  The HR staff member explained that this was to assess the Complainant’s fitness to return to work as she viewed the Complainant’s cocooning as unnecessary. The Complainant felt she had no option but to agree to the assessment. The Complainant was 32 weeks pregnant at that stage.  The occupational health assessment resulted in her being signed off from work due to stress.  The Complainant had no further contact with the Respondent. She began maternity leave on 20 October 2020.

During her maternity leave, the Complainant bumped into a former colleague who had just returned to work prior to the Covid-19 restrictions. The Complainant asked her how she managed to work without childcare. Her former colleague told her that she had no issues transferring to work from home duties.

WRC Complaint

The Complainant made a submission to the WRC on 31 August 2020 seeking mediation in relation to her issues with the Respondent. Her hope was that, through mediation, the Respondent would agree to return the sick leave that she had worked through and that she would be compensated for the shortfall in her wages.  The Complainant asserts that mediation did not proceed due to lack of engagement on the part of the Respondent.

The Complainant submits that, as she had been treated in such a deplorable and discriminatory fashion, and following the lack engagement with WRC mediation services, she felt she had no option but to resign from her position within the Respondent. The Complainant did not return to her employment with the Respondent following maternity leave.  She resigned with effect from 18 November 2021.

The Complainant exhibited correspondence at the hearing, which was issued by Ian Henderson, HR St John of Gods on 27 October 2021 after the Complainant had tendered her resignation.  In his letter, Mr Henderson wrote as follows:

How are you?  Further to your resignation and with regard your final pay from SJOG, this will be paid on 4th November to your account.

I am aware that there is outstanding WRC that has yet to be heard.  Following the outcome of this adjudication, should the outcome result in a finding for the service, the monies owned that are part of this WRC action will need to be recouped by the service at that time.

The Complainant submitted that she felt that Ian Henderson’s letter was threatening and negative and confirmed her decision not to engage with the Respondent’s grievance procedure as she no longer had trust in the organisation.

Cross examination of the Complainant

The Complainant said that she never raised a grievance with the Respondent as she had no trust in HR.

Summary

The Complainant submits that the Respondent made it impossible for her to return to work in August 2020. Instead of allowing her to return to her largely remote/desk job, the Respondent proposed to redeploy her at 29 weeks pregnant to a hands-on, community and public facing position at the height of Covid-19.  The Complainant asserts that her position in Employment Services was less than 1km from her daughter’s creche, passing one school enroute. The creche, like most others at the time, was required to operate reduced hours of 08.00 –17.00. The Complainant’s area of redeployment would have made it virtually impossible for her to get to/from the creche/work on time. The move would have added an overwhelming amount of stress in the later stages of pregnancy and would have had a negative impact on her family's quality of life. 

The Complainant submits that the Respondent’s treatment of her had the effect of diminishing her role, her value, her self-worth, and her confidence.  She submits that she was refused the same rights that other colleagues enjoyed, i.e., the right to work from home.

The Complainant was fortunate to find a job as a social care worker for another organisation beginning 18 November 2021 on a part-time basis of 25 hrs per week. As a direct result of the treatment she experienced in the Respondent organisation, she has lost her passion for Social Care. The Complainant resigned from her new position in August 2022. She felt unable to give the same level of care to the people she supported, and this was unfair to the organisation.

Leaving social care was something the Complainant never envisaged. In fact, she saw a long career ahead of her with the Respondent. She loved her work in both day service settings and previous to that, the residential setting. It was such a convenient place for her to be in terms of her family needs (home, creche, future school). She would have stayed there for years to come. The Complainant subsequently took up a position as an SNA in an autism specific school, which she left after a short time. 

The Complainant submits that the effects of this treatment has had a huge impact on her ability as a parent, as a wife, a friend, a sister, and a daughter.  She asserts that her confidence has been absolutely shattered and that she continues to experience financial struggle and feelings of sadness and loss.

Background to the Respondent

Liffey Services provides support for over 850 children and adults with intellectual disabilities, providing a range of respite residential day services and early services over a substantial number of sites from Dublin Southwest to North.   

Background to the Complainant  

The Complainant commenced employment with the Respondent on 4 January 2016 as an instructor in day services which is a frontline role with responsibility for providing direct supports to the service users. In March 2020, the Complainant worked in the supported employment department which has a primary focus of supporting service users in seeking, securing, and maintaining employment in addition to their overall support needs.

Background to the claim

In March 2020, the Respondent was impacted by the Covid-19 pandemic. Further to a direction from the HSE at that time, the Respondent issued a policy on the redeployment of staff during Covid-19. On 17March 2020, there was a public notice that all non-essential services would close, including adult day services.  In effect, all available staff were to be redeployed to residential services. On 18 March 2020,all day services closed, including supported employment. All available day service staff were contacted regarding their redeployment to residential services. At this time, if staff were not required to cover shifts in the residential services they were required to wait at home on standby. Whilst on standby, where practicable, staff carried out some work duties either at home or in vacant day service.

In or around this time, the Complainant was availing of parental leave every Monday.  In early March she had approached the Programme Manager, Kildare Day Services and advised her that she was in the early stages of pregnancy. The Complainant also advised the Programme Manager that she would need to go on pregnancy related sick leave as she felt unwell due to the pregnancy. The Complainant was advised by to attend her doctor and obtain a certificate if she was not well enough to work.

The Complainant later advised her Line Manager that she was approximately 4 weeks pregnant and outlined her health concerns in relation to the Covid-19 pandemic.  Her Line Manager confirmed that a risk assessment would be arranged in due course. The Complainant also verbalised more general concerns about being in work.

The Complainant was on annual leave in the week commencing 16 March 2020 and was due to return to work on 24 March 2020.  On 23 March 2020, the Complainant telephoned her Supervisor, and advised that she would be taking sick leave due to pregnancy related issues as she felt she was vulnerable in her early pregnancy.  Also, because so little was known at that time about Covid -19, she did not wish to take any chances. She did, however, offer to assist from home with queries she might be able to address.   The Supervisor thanked the Complainant for her offer of assistance and requested only that the Complainant check her work phone from time to time while off sick, for the purpose of redirecting any queries from service users.  A sick certificate was subsequently received by the Respondent on 26 March 2020, citing ‘stress and low mood in pregnancy’covering the period from 24 March to 20 April 2020. On 22 April 2020, a further sick cert was furnished to the Respondent, extending the Complainant’s sick leave until 18 May 2020.

A difficulty arose for the Respondent in late April 2020, where service users were not responding to contacts from the Supervisor. The Supervisor requested the Complainant’s assistance in this regard, by way of text message dated 28 April 2020.

By way of telephone communication on 30 April 2020, the Complainant enquired whether it would be possible for her to work from home.  The Supervisor advised the Complainant to contact management in this regard.  She also explained that, as there were no service users on site in any day services, if the Complainant were to return to work, while it might be possible to work from home some of the time, she would also be required to cover shifts in residential services. 

In a text exchange dated 14 May 2020, the Complainant said that she believed other pregnant women were working from home, which she felt was unfair and indicated to the Supervisor that she would be escalating the matter.  The Supervisor’s responses indicate that she was aware that two colleagues who were also pregnant were working from home but that decisions in this regard were made on a case-by-case basis. At the time there were three other pregnant employees, all of whom were redeployed to residential services to cover some shifts. In May, one of the pregnant employees was deemed to have a high-risk pregnancy following a pregnancy risk assessment and was therefore deemed unable to work in frontline services. The second pregnant employee was carrying out duties at home whilst on standby and the third pregnant employee was covering shifts in residential services. 

The following day, 15 May 2020, the Complainant contacted her Line Manager to again request to work from home. Her Line Manager informed the Complainant that staff who were cocooning and staff who were on standby for redeployment to residential, were beginning to support service users remotely via Zoom. The Complainant informed her Line Manager that this would not feasible as it would be unfair to her husband and daughter.  On 19 May, the Supervisor telephoned the Complainant to offer her the option of working from home using Zoom. The Complainant declined the offer.

On the same day, the Supervisor sent the Complainant a text message regarding payment, as at that time the Complainant was in receipt of full pay less Social Welfare benefit. In an attempt to assist the Complainant in this regard, the Supervisor made her aware that staff who were cocooning were entitled to be paid in full by the Respondent, once certification in that regard had been furnished. However, the Complainant was unable to obtain certification from her doctor advising that she was cocooning.  Staff who were certified as cocooning were fit to work but not in the workplace environment due to underlying health issues.  Employers were required to facilitate them in working from home.

Two further certificates were submitted by the Complainant extending her sick leave from 18 May 2020 to 15 June 2020, and from 16 July to 16 August 2020, again citing stress and low mood in pregnancy.

As the Complainant had been on sick leave since 24 March 2020, she had reached the end of her paid sickness at full pay on the week commencing 18 June 2020.  The Respondent informed her of this by letter.  There were further text messages between the Complainant and the Supervisor between 28 May and 15 July 2020, re clarification of annual leave hours taken by the Complainant and general check-in contacts from the Respondent.  The only other matter discussed between the parties during that period was the confirmation by the Complainant that she was awaiting clarity from her GP regarding cocooning. 

The Complainant contacted the Supervisor by email on 17 July 2020, to advise that she would be returning to work following the expiry of her most recent certificate.  At that time, the Complainant’s most recent sick cert was due to expire on 16 August 2020, and the Respondent duly commenced reviewing arrangements for her return to work. 

Given that the Complainant had been absent since 24 March 2020, having been on leave the week before being certified sick, there had been no opportunity for the Respondent to arrange a pregnancy risk assessment, nor to obtain direction from Occupational Health, in relation to suitable working arrangements. In the absence of both, the ICE programme in Maynooth was considered at that time to be the safest option for the Respondent to return to, on the basis of a number of factors:

·       The building in which this service was situated had been recently renovated and was spacious and ventilated.

·       The numbers of service users supported in ICE at the time was lower than those in the other day services in St Raphael’s and in the community.

·       The option to work at ICE required less direct interaction with service users and less travel and was confined to one site, as opposed to the role in the Supported Employment department, which would require substantially more physical contact with other companies and exposure to different environments. 

The Supervisor telephoned the Complainant on 7 August 2020, to explain to her the arrangements being considered for her return to work and the reasons why the GENIL/ICE option was deemed to be the safest environment at that time. The Complainant was unhappy with the option outlined and the Supervisor advised her to contact her Line Manager before 3.30pm on that day.

Her Line Manager received a text from the Complainant late that same evening and replied, explaining again the arrangements under consideration for her return to work.  No reply was received to this communication and her Line Manager was not under any impression that the Complainant had an issue with the arrangements suggested.  

At that juncture, the Complainant was due to return to work on 17 August 2020 and had not replied to her Line Manager nor had she contacted anyone else in the Respondent organisation. However, the Respondent did, on 14 August 2020, receive a further certificate from the Complainant, issued by the Coombe Hospital, citing that she was unfit for work due to cocooning, and would remain so until delivery. 

A number of subsequent emails indicate communications both with the Complainant and internal discussions in relation to the fact that the Complainant was cocooning, per the cert from the Coombe Hospital, but that cert also certified her unfit for work.  The HSE guidance at that time, stipulated that if an employee was unfit for work due to pregnancy related reasons, they were deemed to be unfit for work both at home and in their place of work.  If this status changed a fit to work cert would be required. Alternatively, if an employee was certified as required to cocoon, he/she was considered actively on duty, but not able to attend the workplace and should be facilitated to work from home.

The certificate from the Coombe Hospital caused some confusion in this regard.  The Complainant was requested to attend a meeting with the Respondent on 2 September 2020. The purpose of the meeting was to discuss the HSE guidance available at the time for pregnant healthcare workers, and to allow the Respondent to discuss the queries the Complainant had raised.

The Complainant requested clarification as to whether this was normal practice for cocooning employees. The Respondent confirmed this was normal practice. The Complainant then advised that she was referring the matter to the WRC.  The Complainant submitted a complaint under the Employment Equality Act to the WRC on 31 August 2020.  

The Respondent then organised an appointment with occupational health to receive clarification on the cocooning certificate received, as it clearly stated the Complainant was unfit for work due to cocooning. The HSE advice at the time was that if someone was cocooning, they were fit to work from home but not in the work environment. 

On 9 September 2020 the Complainant attended a virtual occupational health appointment via telephone.  The Respondent telephoned the Complainant on 11 September 2020 to discuss the occupational health report. The report confirmed the Complainant was unfit to work at home or on site until delivery. The Complainant, on the same day, confirmed she would be taking her maternity leave from 20 October 2020 until 20 April 2021.  The Complainant remained on maternity leave and took a further 16 weeks unpaid maternity leave and remaining annual leave until 18 October 2021.

In September 2021, the Complainant contacted her Line Manager to request a reference. He provided the Complainant with a good reference.

On 18 October 2021, the Complainant emailed her Line Manager informing him that she was resigning from her position of Instructor with one month’s notice. He acknowledged receipt of this letter and said that he was sorry to see the Complainant go.

 The Complainant lodged her further complaint with the WRC on 11 May 2022. 

 Response to unfair dismissal complaint

The Complainant issued the Respondent with a sick certificate on 14 August 2020 stating that she was unfit for work due to her requirement to cocoon. As per the HSE document, which was released on 27 March 2020, those who should cocoon include “people who are pregnant and who have a severe heart illness”. The Complainant was certified as sick from 24 March 2020 and did not return to the workplace again. An individual cannot be cocooning and on sick leave at the same time as this would be completely contradictory. When a person is cocooning, they are still able to carry out work as they are not sick. However, if a person is on sick leave, they are unfit for work and therefore cannot carry out their work.

The Complainant was on sick leave from 24 March 2020 until she commenced maternity leave on 20 October 2020.   Having exhausted her entitlement to full pay while on sick leave, on the week commencing 15 June 2020 the Complainant went on half pay, as per the terms of the Respondent’s sick pay policy. This does not mean that the Complainant was discriminated against due to her family status nor was she put in a position where she was forced to resign.  The Respondent was simply applying its sick pay policy.

The Respondent submits that the Complainant was not cocooning and as a result, was placed on sick leave. When an employee is on sick leave in excess of 6 days the employee must apply for illness benefit from the DEASP the value of which is deducted by payroll. 

 Section 1(b) of the Unfair Dismissals Acts, 1977 (as amended) defines dismissal in relation to an employee as, inter alia:

“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”

The Respondent submits that, given this definition, and established principles adopted by the Tribunal and the Courts, there exists a burden on the employee to demonstrate that:

a)       The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or

b)      The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It is the Respondent’s position that neither criterion has been met.

The Respondent submits that at all times it operated within the terms of the contract of employment between the parties and that no breach of contract occurred. The Respondent relies on the contractual test for constructive dismissal as set out in Conway v Ulster Bank, UD474/1981 in support of its position, in that the Respondent did not violate any term of the contract or its policies. The Respondent’s actions were in no manner “a repudiation of the contract of employment” and did not demonstrate “that the Respondent no longer intended to be bound by the contract”. No change occurred in the contract to make it “so radically different from what was before”.

The Respondent submits that it fulfilled its contractual obligations, implied and otherwise, at all times. Accordingly, it is the Respondent’s position that the termination of the Complainant’s employment fails on the contractual test to be a constructive dismissal.

Regarding reasonableness, it is the Respondent’s position that there exist two interwoven factors to be considered: 

a)       did the employer act unreasonably so as to render the relationship intolerable, and

b)      did the employee act reasonably in resigning, particularly in respect of exercising internal grievance procedures. 

In this regard, the Respondent relies on McCormack v Dunnes Stores, UD 1421/2008, where the Tribunal stated:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

It is the Respondent’s position that it acted reasonably and fairly at all times, in accordance with its policies, best practice, and appropriate conduct. The Respondent submits that it applied its policies in a fair and reasonable manner at all times during a particularly difficult time within the healthcare sector. 

The Respondent has a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Codeof Practice on Grievance and Disciplinary Procedures (SI 146 of 2000).

It is the Respondent’s position that in advance of the Complainant tendering her resignation, she failed to notify the Respondent of any concerns she may have had in relation to her employment, nor did she utilise internal procedures to resolve any grievance she may have had. The Respondent maintains that the Complainant acted in a hasty and unreasonable manner by resigning from her position before notifying the Respondent of her concerns and in advance of exhausting internal procedures. As such, the Complainant did not act reasonably in resigning her employment as she had not previously “substantially utilised the grievance procedure to attempt to remedy her complaints” as required in accordance with Conway v Ulster Bank.

The Respondent submits that the obligation to exhaust internal grievance procedures exists even in situations where a purported breach of contract occurs. In Travers v MBNA Ireland Limited, UD720/2006 the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. The Complainant initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. The Tribunal found that the Complainant was not constructively dismissed as he did not “exhaust the grievance procedure made available to him by the Respondent and this proves fatal to the Complainant’s case”.  The Tribunal went on to find that “in constructive dismissal cases it is incumbent for a Complainant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

The Respondent submits that just as it is unacceptable in the case of a non-constructive dismissal for an employer to dismiss an employee without recourse to fair and comprehensive procedures, so to it is insufficient for an employee to claim herself to have been constructively dismissed without utilising and exhausting grievance procedures. It is the Respondent’s position that the Complainant fails to meet the burden of proof to show that her actions were reasonable. As in Travers v MBNA, it is the Respondent’s position that the Complainant’s failure to utilise/exhaust internal grievance procedures is detrimental to her claim. 

The Respondent submits that the Complainant failed to provide it with an opportunity to fully respond to her concerns by failing to utilise any of the formal channels to seek to address any issues she may have had.

The Respondent also relies on Fitzsimons v Mount Carmel Hospital, UD855/2007.  In that case, in the Complainant’s letter of resignation a complaint was raised against the Complainant’s Line Manager. The Respondent conducted a “full investigation” and extended an invitation to return to work. The Respondent further “was open to meeting requests and provisions which may reasonably attach to the said return to work” and an offer was made to “bring in a mediator to facilitate a harmonious return to the workplace if that was possible”. The Complainant rejected the offer of return on the grounds that her relationship with her Line Manager had deteriorated so much.

 The Tribunal found that:

“It is regrettable that this final step [of acceptance of the return to work offer] was not taken and the Tribunal finds it was unreasonable for the Applicant not to have seen this process through. The Employment Appeals Tribunal’s primary function is to ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures where a clear effort is being made to overcome past difficulties.”

The Respondent submits that, by virtue of the above, the Complainant’s resignation does not fulfil the test of reasonableness and thus cannot be determined to be a constructive dismissal.

Conclusion 

In summary, the Complainant put the Respondent on notice of her pregnancy in early March 2020 at a time when Covid-19 had a significant adverse impact on the health service.   Following a period of annual leave and parental leave, the Complainant was certified unfit to work from 24 March 2020 until the commencement of her maternity leave in October 2020. The Complainant requested permission to work from home and the Respondent provided an opportunity for her to do so.  The Complainant declined the offer, on the basis that the option offered was unsuitable in that it would be ‘unfair to her husband and daughter’.

In August 2020, when some of the Respondent’s sites had started to re-open, the Complainant was due to return to work.  The service which she had worked in prior to going on sick leave which had closed in March 2020, was in the process of reopening.  For the purposes of ensuring the Complainant’s health and safety, a different site, deemed by the Respondent to be more suitable and safer, was suggested to her.  When the Complainant expressed her unhappiness at this suggestion, the Respondent organised a meeting to discuss it with her.  The Complainant declined to attend that meeting and indicated her intention to have the matter investigated by the Workplace Relations Commission.

The Complainant remained on certified sick leave until October 2020, when she commenced maternity Leave.  Following her maternity leave, in October 2021, she resigned from the Respondent organisation.

It is the Respondent’s position that it in no way repudiated the contract of employment but rather, at all times, it conducted the employment relationship within the parameters of the contract. Furthermore, it is the Respondent’s position that its interactions with the Complainant were always reasonable, and that, in fact, the Complainant’s action in failing to utilise and exhaust the internal grievance procedures amounted to unreasonableness on her part.  Accordingly, it is the Respondent’s position that the Complainant was not dismissed, constructively or otherwise, from her employment.

As the Complainant is claiming constructive dismissal, the burden of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:

““dismissal”, in relation to an employee, means—

(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.”

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp. It comprises of two tests, 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 Supreme Court in Berber -v- Dunnes Stores [2009] ELR 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.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment. 

It is generally accepted that employees who claim that they have been constructively dismissed must show that they have substantially utilised the grievance procedure before resigning from their employment. Whilst there are exceptions to this, such exceptions are extremely rare.

In the case of Conway v Ulster Bank Ltd (UD 474/1981) the Employment Appeals Tribunal found that: “the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated:

“We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case. In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair.”

Desmond Ryan aptly describes the onus on employees in this respect in Redmond on Dismissal Law (2017) at paragraph 19.14: “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 employer’s grievance procedures in an effort to resolve his grievance.  The duty is an imperative almost always in employee resignations.  Where grievance procedures exist they should be followed: Conway -v- Ulster Bank Ltd UD474/1981.  In Conway the EAT considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints.’” 

As set out elsewhere in this decision, my investigation and decision in relation to this case is confined to the period from 21 August 2020, the day following the submission of the original complaint to the WRC, to 18 November 2021, the date of termination. 

I note that there was engagement between the parties in late August and early September 2020, but as the Complainant does not cite this engagement as a contributory factor in her resignation, I have not made any findings in relation thereto.

The Complainant has asserted that the Respondent’s lack of engagement with the WRC pre-adjudication mediation process, in which she had expressed an interest, left her with no option but to resign from her employment and is sufficient grounds on which to base a complaint of constructive dismissal.

Pre-adjudication mediation is a voluntary process.  Either party to a WRC complaint may decide that it does not wish to engage in mediation.  I am of the view, therefore, that the Respondent’s decision not to engage with the pre-adjudication mediation process does not provide sufficient justification for the Complainant to assert that the Respondent acted unreasonably and that she had no option but to terminate her employment with the Respondent. 

I also note the correspondence which was issued by Mr Ian Henderson, HR St John of Gods, on 27 October 2021 to the Complainant.  This is a very concerning letter which contains an erroneous warning to the Complainant that if she was unsuccessful in her first referral to the WRC, then she would owe money to the Respondent.  The contents of this letter are completely unfounded and in no way reflect the outcome of an unsuccessful complaint to the WRC.

The Adjudication Service of the WRC provides a forum for individuals to seek redress if they believe that their employment rights have been breached.  The WRC would never countenance a situation where an unsuccessful complainant would be left with a financial liability to the Respondent.  If such an outcome was possible, it would have a chilling effect on those who contemplate a referral to the Adjudication Services of the WRC as a means of vindicating their employment rights.

However, even though I am of the view that Mr Henderson’s correspondence is egregious, I find that the Complainant cannot rely on it to support her claim for constructive dismissal as it was issued in response to her resignation and, therefore, could not have precipitated it.

In conclusion, having considered the submissions of both parties and all the relevant evidence adduced at the adjudication hearing, I declare that the complaint of constructive dismissal is not well founded.

I find that this complaint is not well founded, and I dismiss the complaint.

Constructive dismissal