Complainant

Respondent

Anonymised Parties

An Employee

An Employer

Representatives

Self-represented

Employee Relations Manager

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-00061071-001

18/01/2024

The complainant submitted a claim to the Workplace Relations Commission that she had been constructively dismissed by the respondent contrary to the Unfair Dismissals Act 1977.

The respondent rejected the claim. 

The complainant was employed with the respondent as a Community Registered General Nurse. 

The complainant had no alternative but to resign her position due to the financial situation; she had exhausted all sick leave entitlements, there was no further sick pay available to her after 30 November 2023 and her application for social welfare invalidity pension had been refused.

The complainant was in receipt of a Temporary Rehabilitation Remuneration (TRR) payment, but this was insufficient for the complainant to remain in employment.

The complainant discussed with occupational health and HR her decision to resign from employment.

The complainant seriously considered the discussions she had with HR and the request that she take time and advice on her decision to resign, however the complainant could not remain in employment with the respondent without pay and without a pathway to return to work. 

Further to concerns for the complainant’s health in October 2021, the complainant was referred to the respondent’s occupational health service and commenced a period of sick leave.  The complainant was certified unfit for work by her own doctor and by occupational health.  The complainant remained on sick leave and was paid in accordance with the respondent’s sick leave scheme until her resignation in November 2023.

The complainant expressed an intention to resign from employment on a number of occasions, including in or around October 2022, February 2023 and March 2023.  The respondent offered the complainant support and the respondent’s personnel met with the complainant to discuss her intentions and what a resignation entailed.  The respondent confirmed with the complainant that her return to work was subject to her being certified fit by occupational health. 

At a meeting with the complainant in August 2023, the area Head of HR and the complainant’s line manager expressed their strong desire to ensure the complainant received all the supports she required.

On 7 November 2023, the complainant referred to her previous efforts to terminate her employment with the respondent and queried why her P45 had not issued. The area Head of HR spoke with the complainant on 9 November 2023 and asked the complainant to consider her decision to resign and encouraged her to seek guidance or advice due to the serious nature of the decision. 

On 20 November 2023, the complainant emailed the area Head of HR with her resignation form and requested the respondent to formally accept her resignation.  In response, the area Head of HR referred to the efforts made to ensure the complainant was fully informed prior to making the decision but acknowledged that she must honour the complainant’s request.    The complainant confirmed that she was keen for her resignation to be processed as soon as possible. 

The respondent processed the complainant’s resignation, which was effective from 1 November 2023.

This is a claim of constructive dismissal pursuant to the Unfair Dismissals Acts 1977-2015 (the “Acts”).

The complainant’s case was that she had no alternative but to resign because of the financial situation she was in; sick pay had been exhausted, the TRR payment was not sufficient, and there was no pathway for her return to work.

The Law

Constructive dismissal is included in the definition of “dismissal” at section 1(b) of the Acts as follows:-

“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 definition provides for two circumstances in which, because of the conduct of the employer, an employee is entitled or justified in terminating their employment and thereby constructively dismissed.  

The Contract Test

This involves the employer, by its conduct, repudiating the contract of employment.

The accepted statement of this test is from Western Excavating v Sharp [1978] ICR 221 where Lord Denning MR held:-

“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 further performance … [T]he conduct must … be sufficiently serious to entitle him to leave at once.  Moreover, he must make up his mind soon after the conduct of which he complains:  for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged.  He will be regarded as having elected to affirm the contract.”

Reasonableness Test

This involves an assessment of the employer’s conduct as to whether it acted so unreasonably that the employee could not fairly be expected to put up with the conduct any longer.  It is well-established in this context that an employee must also conduct themselves reasonably, including affording the employer an opportunity to address the issues giving rise to the termination of the employment.

Findings and Conclusions         

The complainant was certified by her own doctor and the respondent’s occupational health as being unfit for work.  The respondent applied its sick pay scheme in respect of the complainant’s long-term absence.  The respondent explained to the complainant what was required in terms of ensuring that the complainant continued to receive payments under the respondent’s sick pay scheme, including engagement with occupational health, and what the respondent required for the complainant’s return to work.  It was common case that on the occasions the complainant had previously indicated an intention to resign, the respondent had engaged with the complainant and sought to support the complainant in her decision.  The respondent continued in its efforts in November 2023 to support the complainant, to ensure she was aware of the implications of a resignation from employment and that she discuss and take advice on the matter.  The complainant reiterated her wish to resign.  The respondent suggested the complainant wait until after an occupational health appointment in December before finalising her decision.  It was agreed that the Head of HR encouraged the complainant to seek guidance or counsel on the decision.  The complainant took advice within her family and confirmed her wish to resign.  The complainant completed the relevant documentation and confirmed her resignation with effect from 1 November 2023.    

I am not satisfied of conduct on the part of the respondent which was a material breach of the employment contract.  I am also not satisfied that the matters complained of in relation to the complainant’s financial situation and a return to work was conduct on the part of the respondent such that it was reasonable for the complainant to resign within the meaning of section 1(b) of the Acts.   The complainant disagreed with the medical and occupational health opinion that she was unfit for work.  The respondent had no control over that medical and occupational health opinion.  From the respondent’s perspective, it was advised by the relevant professionals that the complainant was not fit for work.  The respondent applied its sick leave procedures.  The respondent engaged with the complainant in terms of explaining the sick leave procedures and supported the complainant so that she could obtain the benefits under the sick leave scheme.   

In the above circumstances, I cannot find that the respondent’s conduct was such that the complainant was constructively dismissed within the meaning of section 1(b) of the Acts.

For the reasons set out above, I find that the complainant was not unfairly dismissed, and I decide accordingly.

Constructive Dismissal