UDD2415

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00039351 (CA-00051029-001)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 10 March 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 21 March 2024. The following is the Decision of the Court.

DECISION:

This is an appeal by St John of Gods Community services CLG (hereafter the Respondent) against an Adjudication Officer’s Decision ADJ-00039351 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim by Olapeju Oyegoke (hereafter the Complainant) that she was unfairly dismissed.  The Adjudication Officer upheld her complaint of unfair dismissal and ordered reinstatement.

Background

The Complainant commenced employment with the Respondent initially as a Care Assistant and then as a Social Care Worker on the 24th August 2004. The context of the complaint is that the Complainant handed in her resignation and a short time later on foot of medical advice sought to retract same. The Respondent refused to let her retract the notice on the basis of an unwritten policy that they had not to allow anyone to retract a resignation.   The Complainant handed in her notice on 27th January 2022.  The Complainant was paid €49,978 per annum and worked 39 hours per week.

Summary of Complainant’s submission and evidence.

The Complainant has worked with the respondent since 2002 and had an unblemished record. In April 2019 the Respondent suffered a tragedy when her seventeen-year-old daughter passed away unexpectedly. This would have been known to the Respondent and her work colleagues. It is not disputed that the Complainant had difficulties with the proposed transfer arising from a previous traumatic event, but despite supplying a medical certificate from her GP on 27th November 2020 she was never referred to Occupational Health. She was informed that a risk assessment had been carried out by a Social Care Leader who had determined the risk as low but was not provided with copy of same.  It is noted in the note of the meeting of 16th November 2021 to discuss the proposed transfer, that the Complainant became anxious and upset as the notes states “RF reassured Ola that if she would like to continue the conversation they could do so when she feels ready” Despite this, and having a medical certificate from her GP the Respondent instead of referring the Complainant to Occupational Health sought to push ahead with the internal move.

On the 13th December 2021, the Complainant emailed the Respondent setting out her reasons for not wanting to transfer to that particular area. Despite having a GP certificate which stated “For her health reasons, I recommend that Olapeju should not work in environment where she is exposed to smoke” and having the Complainants email setting out her reasons the Respondent requested more information in respect of the smoke inhalation issue.  In a follow up email of 17th December 2021, the Complainant sought a referral to Occupational Health and stated “ I have gone through a series of stress in recent past which has cause  for concern and being monitored closely by G.P”. As the particular manager she was dealing with was finishing up work that day she also sent the request for referral to occupational health to Ms. Dolphin on the 6th January 2022.

The Complainant attended her own GP on 11th January 2022 who prepared a note which referenced the Complainant’s mental health concerns. It is accepted that the Complainant did not give that note to the Respondent. The Complainant was certified by her GP as unfit to attend work from the 17th January 2022 to 2nd February 2022 inclusive. On the 27th January having had no reply to her request to be referred to Occupational Health the Complainant in a state of high anxiety and stress submitted her resignation. The resignation was accepted on the same day by the Respondent.

On the 8th February 2022 following a further consultation with her G.P with whom she discussed the fact of her resignation. The GP informed her that this was a rash decision and was made in the context of an extremely stressed and anxious mind and that she should retract her resignation. By email of the 8th February the Complainant sought to retract her resignation. This was refused by email of 22nd February 2022 by Mr Henderson. The Complainant sent in a more detailed email setting out the medical issues she had, again seeking to retract her resignation. This was refused again by Mr Henderson on the 25th February 2022, with a note that she could have a position on their relief panel.

 The Complainant gave evidence in respect of her losses and her mitigation of same. She confirmed that she was on certified sick leave when she wrote her letter of resignation and remained on sick leave until July 2022. She went looking for work in the same sector but during the course of her employment social care workers had come under the ambit of CORU and her qualifications were no longer considered appropriate for applying for a social care worker job. There was no issue if you were already in employment. While a ‘grandfather clause; was eventually introduced this did not happen until late 2023, and therefore the only work she could get was agency work. The number of hours she was assigned varied but on average she got 24 hours a week whereas she was fulltime with the Respondent. She has gone back to college to study to become a Social Worker, but she can fit in shifts around her college work.  She informed the Court, that she told the agency she was available for 36 hours a week and that in 2023 her average weekly pay was €365.  The Complainant confirmed that she was looking to be reinstated.

 Under cross examination the Complainant accepted that her average hours with the Respondent were 40 hours. She stated that she had never turned down any work the agency had offered her. The Complainant listed a few organisations she had applied to work directly for but at the time they were all waiting for clarification from CORU as to how the old qualifications were to be treated.

 Ms Peaker B.L submitted that this case was somewhat unusual in that the Complainant had tried to engage with the Respondent about her unwillingness to move even requesting a referral to Occupational health and providing a GP certificate that recommended that she not be exposed to smoke. The Respondent responded to that by having a lay person carry out a risk assessment who found the risk of exposure to smoke was low. It is not clear how that complies with the GP recommendation that she should not work in environment where she is exposed to smoke. The failure of the Respondent to engage on this issue in an appropriate manner caused enormous stress and anxiety to the Complainant. 

 The Respondent seeks to rely on the UK case Kwik-Fit (GB) Limited v Lineham [1992] IRLR 156 which refers to heat of the moment and suggests that because the resignation letter was carefully drafted it doesn’t meet the requirement of heat of the moment. However, this does not take away from the Complainant’s state of mind at the time she wrote and submitted the letter.  Despite receiving a detailed explanation on the 25th February 2022, which was still within the Complainant’s notice period the Respondent refused to engage with the issues the Complainant raised. At the very least the Respondent should have considered whether special circumstances existed and investigated the issues raised. The application of a blanket policy without any understanding of the reasoning behind the retraction is not acceptable. Ms Peekar BL drew the Court’s attention to two EAT cases Geraghty v Industrial Credit Corporation UD389/1989 and Keane v Western Health Board UD940/1988which she submitted were very similar to the facts of the case to hand.  The Complainant had been an exemplary employee for eighteen years and had suffered an enormous tragedy in April 2019 when her daughter had passed away. The Complainant tendered her resignation during a period of mental health issues having attempted to engage with the Respondent around the proposed transfer. She then very quickly sought to retract the letter of resignation.  The decision of the Respondent to apply a blanket policy and not engage with the Complainant was unfair and led to an unfair dismissal. The Complainant is seeking re-instatement.

Summary of Respondent’s submission and evidence.

 IBEC on behalf of the respondent submitted that in December 2021, the Complainant was notified that she would be moving location in January 2022. The Complainant raised concerns around the working environment in the proposed new work location due to a resident at the new location smoking, and she provided a medical report which stated that for health reasons she should not work in a nicotine environment. The Respondent caried out a risk assessment which indicated a low risk of exposure in the proposed new location. The Complainant was advised of this but was not provided with a copy of the risk assessment. On the 6th January 2022 the Complainant advised her Residential Coordinator that she felt the move was inappropriate as it would impact on her health due to a previous traumatic experience.  The Residential Coordinator informed her she would need to submit a certificate from her GP confirming same and once that was received, she would be referred to occupational health.

 On the 17th January 2022, the date the Complainant was due to move she sent in a medical certificate stating she was unfit for work. On 27th January 2022 the Complainant submitted a resignation letter to HR, but it was sent to the wrong person. On the 31st January 2020 a further copy of her resignation letter was sent to the correct person. The Complainant gave a months’ notice of her resignation which was dated 27th January 2022.

 Ms Grainne Ridge responded on the same day (31st January 2022) accepting her resignation. On the 8th February 2022, the Complainant wrote to Mr Henderson HR Officer requesting that her letter of resignation be disregarded on the basis that she had spoken to her GP who advised that she should retract same. By letter of the 22nd of February 2022 Mr Henderson advised the Complainant it was not possible to retract her resignation. The Complainant on the 25th February 2022 submitted a further email giving full details of her medical issues and why she was not in a position to make a decision to resign. However, the email was not supported by any medical evidence.  By email of the 28th February the Respondent informed the Complainant that she could not retract her resignation, but they would offer her a role on their relief panel. This was offered as she had earlier in January 2022 made enquiries about the possibility of moving to the relief panel.

 Mr Henderson HR Officer for the Respondent at the time, in his evidence to the Court confirmed that prior to her resignation the Complainant had requested a referral to Occupational Health but had not specified that she had mental health issues. To be referred to Occupational Health the Respondent had to receive a medical certificate from the Complainant’s GP stating she had mental health issues, and they had not received such a certificate. While they had received a medical cert from her GP in respect of exposure to smoke, they had caried out a risk assessment which had shown the likelihood of exposure to smoke in the new location was low. It was his evidence that he could not be sure that the Complainant had been given a copy of the risk assessment as they had no record of giving it to her. Mr Henderson stated that it was policy not to allow employees to retract resignation notices. While this was not a written policy because of the number of employees and the number of resignations they received on an ongoing basis they had to have this policy.

 Under cross examination Mr Henderson accepted that he had no background information in respect of the Complainant when he made the decision not to allow her to retract her resignation. He was not aware that her daughter had died two years earlier. He said it was not the practice to get background information prior to making a decision such as that, as that would involve having to go and get the file and they had hundreds of files. He could not explain the delay in responding to her letter of 8th February 2022 other than to say that he was busy. He confirmed when he got the second email of 25th February which contained more details about her medical issues, he did not engage with any of the reasons she had put forward for retracting her resignation nor did he consider that it might be appropriate for someone else to consider the issue as he had made the initial decision not to allow the Complainant retract her resignation.

Mr Henderson confirmed he was aware that the Complainant was out on certified sick leave when she tendered her resignation.  He also confirmed that she was not advised that she could appeal his decision. In response to a clarification sought by the Court as to why they could offer her a position on a relief panel but not her old job back, Mr Henderson stated that a process was in place to replace her, but he could not recall if a replacement had been identified and had signed a contract at the time she sought to retract her resignation.

 The next witness for the Respondent was Ms Dolphin who at the time was Residential and Respite Coordinator. Ms Dolphin was copied in on the email of 16th December 2021, that issued to the Complainant advising that a risk assessment had been carried out and that she was moving to the new location on 17th February 2022. Ms Dolphin confirmed that she did not know whether or not the Complainant had been given a copy of the risk assessment carried out by Ms Fennelly Social care Leader. She confirmed that she emailed the Complainant on the 6th January advising that she try out the new location, and that if she could not fulfil her current role they would need a letter from her GP to that effect and then she would be referred to Occupational Health.

 Under cross examination by Ms Pekaar BL, Ms Dolphin confirmed there were circumstances where someone could be sent to Occupational Health without a GP referral. However, it was not unusual for staff to try and   resist being transferred, and she did not see any need at that point in time to make an Occupational Health referral.

 IBEC on behalf of the Respondent submitted that this was not a case in which special circumstances existed as identified in the UK case Kwik-Fit (GB) Limited v Lineham [1992] IRLR 156.  The Respondent as soon as they were made aware that the Complainant was having medical issues which may have contributed to her decision to resign acted in a reasonable manner by offering her a role on their relief panel.

 The Respondent submitted without prejudice to their position as set out above the Complainant had failed to mitigate her loss.

The applicable Law

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Issue for the Court

Were there special circumstances which the Respondent should have considered before refusing to allow her to retract her letter of resignation.

Discussion

In general, the sequence of events in this case as set out Complainant’s and Respondent’s submissions are not in dispute.

The Court reviewed the caselaw opened to it by the parties. The Court notes that in KWIK- Fit (GB) Ltd v Lineham [1992] IRLR 156 the tribunal states

“ If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but on the field of employment personalities constitute an important consideration. Words may be spoken, or actions expressed in temper of in the heat of the moment or under extreme pressure (being jostled into a decision) and indeed the intellectual make up of an employee maybe relevant. These we refer to as “special circumstances. Where “special circumstances” arise, it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employer’s risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the “special circumstances” the intention to resign was not the correct interpretation when the facts are judged objectively.”

  It is clear to the Court that “special circumstances” as described in that case has a wider meaning that just heat of the moment decisions as argued for by the Respondent. In the Keane case referenced earlier the Tribunal in its determination stated

“ the claimant, notwithstanding the grievance procedure that existed in the Western health Board, genuinely believed that the difficulties and stress she was expressing at that time presented her with no alternative other than to resign from her employment.  The letter of resignation viewed against the background in which it was made could not be deemed a fully informed decision or notice by her to terminate her contract of employment.  The tribunal, accordingly, is of the opinion that the notice of resignation is tainted by reason of the confused state of her mind at the time it was tendered coupled with her obvious lack of appreciation of the grievance procedure. The Tribunal has also considered the fact that as soon as the claimant had the benefit of informed advice as to the alternative remedies open to her she conveyed to the Board notice of her desire to revoke such resignation.”

It is clear to the Court that the Tribunal in that case, took into account a number of facts including the Complainant’s state of mind at the time she tendered her resignation.

 The Court finds that having a blanket policy of not allowing staff in any circumstances to retract a letter of resignation is not in line with the caselaw in this area, and therefore the Court should not give any weight to that policy in its deliberations.

 In the case to hand the Complainant had an unblemished career, she also suffered a tragedy in April 2019. When in November 2021 the Respondent proposed to transfer the Complainant, it triggered a serious of events. The Complainant sought not to move for health reasons linked to smoke inhalation and provided a medical certificate from her GP in respect of this, the Complainant sought to be assessed by the Respondents Occupational Health but this was not facilitated and it would appear that in order to avoid the proposed transfer the Complainant enquired about giving up her permanent job of 18 years and moving to the relief panel. The Complainant was then certified unfit to work by her GP. While on sick leave she tendered her resignation.

Following a meeting with her GP and during her notice period she sought to retract her resignation letter. The Respondent did not reply to her request for a period of two weeks and then refused same. The Complainant three days later sent in a more detailed letter setting out her medical issues. The Respondent according to the evidence of Mr Henderson did not consider these issues at all, and restated his previous position that she could not retract same.

 It is clear to the Court that in looking at the sequence of events from the time of the meeting about the proposed transfer there are enough factors present to suggest that there may have been “special circumstances” at play when the Complainant wrote and submitted her letter of resignation. At a minimum there should have been some follow up by the Respondent to understand why the proposed transfer was triggering such a drastic response rather than just relying on a blanket policy. It is notable that when the Complainant sent the second email of the 25th February the Respondent in their submission state that having given consideration to the email supplied they offered her a role on their relief panel.  This suggests that they accept that following that second email that special circumstances existed at the time of the resignation. Why else would they have moved from their blanket policy which the Court was informed was always applied.

 The Court based on the submissions and evidence before it finds that “special circumstances” existed, and that once the Respondent was notified of the Complainant’s request to retract her letter of resignation, they should have inquired further rather than relying on a blanket policy of refusal. The Court finds that the Complainant was unfairly dismissed.

The final issue for the Court to consider is redress. The Act provides for three forms of redress re-instatement, re-engagement and compensation. The Court having heard the submissions and evidence of the party and taking it all into account finds that reinstatement is the appropriate form of redress in this case.

 In coming to that conclusion, the Court notes the long service the Complainant had, the fact that changes to qualifications in recent years, made it nearly impossible for her to get a similar position in that field, and the fact that the Respondent at the time of her resignation was ready to have her back in work on their relief panel. They main difference being she would lose her permanent status and her guaranteed hours. The Court also took account of the evidence of Mr Henderson that the Respondent had a regular turnover of staff and resignations were a regular feature of his job. Therefore, reinstating the Complainant should not create any hardship.  Taking all these factors into account the Court finds that re-instatement is the appropriate redress.

Decision

The Court decides that the appeal is well-founded.  The Decision of the Adjudication Officer is upheld.  The Court so decides.

	Signed on behalf of the Labour Court
	Louise O'Donnell
AR	______________________
16 April 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Aidan Ralph, Court Secretary.