UDD242

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00033642 (CA-00047202-001). 

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2014. A Labour Court hearing took place on 12 December 2023. The following is the Decision of the Court:

DECISION:

Background to the Appeal

This is an appeal by Ms Eman Chennit (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00033642/CA-00047202-001, dated 28 April 2023) under the Unfair Dismissals Act 1977 (‘the Act’). The complaint of constructive dismissal under the Act was not upheld by the Adjudication Officer. Notice of Appeal was received in the Court on 19 May 2023. The Court heard the appeal in Dublin on 12 December 2023, along with the Complainant’s appeal under the Employment Equality Act 1998 the decision in which bears reference number ADE/23/67

Summary of the factual background

The Complainant was employed by Vevay Childcare Limited T/A Little People’s Academy, Hill Street, Dublin 1 (‘the Respondent’) as a childcare practitioner between 27 May 2019 and 16 November 2021. She was paid €12.50 per hour. On 9 November 2020, the Complainant informed her employer of her pregnancy. It is common case that the Complainant raised concerns with the Respondent about her then working arrangements in the ‘wobbler unit’ because of her pregnancy on or around 20 November 2020 and again in mid-December 2020 and that both parties proposed various alternatives which, for one reason or another were not deemed suitable for the Complainant. The Complainant was subsequently moved to the baby room in January 2021 and this appeared to work well.

The Complainant availed herself of a period of annual leave between 4 March 2021 and 19 March 2021. Prior to this, it appears that an informal discussion took place between the Complainant, her Line Manager and the District Manager which Management understood to have resulted in the Complainant agreeing to move to the senior toddler room, where she would be working alongside one other full-time staff member, on her return from annual leave. On 12 March 2021, during her annual leave, the Complainant texted her District Manager to inform her that she would not be prepared to work in the toddler room as she regarded it as too stressful for her having regard to her pregnancy. The District Manager replied on the same day in writing outlining the reasons why the Complainant was to be moved to the toddler room on her return from annual leave and reminding her that she had in fact herself expressed a preference to work in the senior toddler room because she would have the additional support of another full-time colleague there. Nevertheless, the Complainant was permitted, at her own request, to return to the baby room on her return to work.

On 4 May 2021, the Complainant submitted a formal written grievance in relation to her District Manager wherein she complained of “a hostile atmosphere and an unsafe working environment” where she “had been neglected and harassed by the District Manager”. The written grievance extended over nine typed pages. The Proprietor of the Respondent, Ms Margaret Paul, replied to the grievance with what was essentially a holding letter on 12 May 2021. Ms Paul also informed the Complainant in her replying letter that she had hired an additional full-time staff member. It appears that no substantive action was taken by Ms Paul to investigate the Complainant’s grievance.

The Complainant went on annual leave on 9 June 2021 and her statutory maternity leave commenced immediately thereafter. The Complainant referred her initiating complaint under the Employment Equality Act 1998 to the Workplace Relations Commission on 2 June 2021. She did not return to employment with the Respondent from her maternity leave. The Complainant resigned from her employment by letter dated 16 November 2021 and the proceeded to submit her complaint of constructive dismissal on that date also. The Complainant was in receipt of illness benefit from the Department of Social Protection thereafter.

The Complaint under the Act

The following is the narrative that the Complainant set out in the Complaint Form submitted to the Workplace Relations Commission on 16 November 2021:

“To whom it may concern, I have decided to resign from my role in Little People’s Academy under constructive dismissal. I’m resigning due to a breach of contract. I consider being forced to work in breach of health and safety laws and in an unsafe environment while pregnant and not receiving sufficient support to do my job to be in breach of my contract and believe these issues to be constructive dismissal. I have submitted a complaint to the Workplace Relations Commission in regard to these issues WRC Ref: CA-0004456. I have forwarded the relevant documents for that complaint. Please add this to my previous complaint.”

The Law

The Act defines ‘dismissal’ as follows:

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

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose”.

The Complainant resigned her employment on 16 November 2021. By that date over six months had elapsed since the Complainant had submitted a very detailed and lengthy written grievance letter to the Respondent and in response to which the Respondent had taken no steps to investigate any of the serious allegations of bullying, harassment or breaches of health and safety legislation that Complainant had outlined in therein. In the circumstances, the Court views the Complainant’s decision not to return to the workplace on the expiry of her statutory maternity leave as reasonable. The Respondent had had ample opportunity in the months following 4 May 2021 to demonstrate a genuine intention to investigate the issues raised by the Complainant in her grievance letter but had taken no steps whatsoever in that regard. Burying one’s head in the sand in such circumstances is neither a reasonable nor acceptable response from an employer. For that reason, the Complainant’s claim of constructive dismissal under the Act succeeds and the decision of the Adjudication Officer is set aside.

In circumstances where the Complainant was availing herself of Illness Benefit for an extended period following the date of her dismissal she has not technically accrued a loss within the meaning of the Act. The Court is, therefore, restricted to awarding her a maximum of four weeks’ pay by way of compensation. Having regard to the foregoing, the Court directs the Respondent to pay the Complainant €2,000.00 by way of compensation under the Act.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
CDK	______________________
10 January 2024	Deputy Chairman