Complainant

Respondent

Anonymised Parties

An Employee

A Security Company

Representatives

  Self-represented

Paul D Maier BL instructed by BHSM LLP Solicitors

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-00060679-001

12/12/2023

The claim was submitted on 12th of December 2023.   The complainant in submitting her claim of Unfair dismissal provided no date of dismissal in her claim form but in later correspondence to the WRC provided the date of 29th of October 2022 as her date of dismissal.

The Respondent submits that the present complaint is out of time as it refers to matters which allegedly occurred more than 12 months prior to the claim being referred to the WRC.

The Respondent stated that the present complaint was referred in excess of six months after the alleged date of dismissal provided by the complainant and furthermore was submitted outside of the 12-month period whereby an extension of time limits may be sought.   The respondent stated that the complainant had initially provided no date of dismissal in her claim form but in later correspondence to the WRC provided the date of 29th of October 2022 as her date of dismissal.    

The claim was submitted on 12th of December 2023 more than 12 months after the alleged date of dismissal.    In addition, the respondent submits s that there was no dismissal.

The complainant advised the hearing that she had not worked since 29th of October 2022 and so had provided this as her date of dismissal.    The complainant added that she felt that she could not go back to work due to ongoing issues with work colleague which she states were not resolved.    She added that she had been on sick leave for a number of months suffering from anxiety and that she had also suffered the loss of two family members during the period since she had last attended work.

The complainant advised the hearing that she had not returned to work since October 2022 as there had been an altercation with a colleague.  She stated that she had lodged a complaint with the respondent and had attended several meetings in this regard. 

The respondent advised the hearing that the complainant had lodged a grievance which had been dealt with through the respondents grievance procedure and appeal process.   The complainant acknowledged that a number of meetings took place in respect of her grievance.  

The complainant told the hearing that she felt she could not go back to work and added that she had been out on sick leave for a period.  The complainant told the hearing that she had also suffered two family bereavements during the period which had added to her anxiety. 

The respondent acknowledged that the complainant had been on sick leave and had submitted medical certs for part of this absence period but thereafter had not provided any medical certification.   The respondent stated that the complainant had not submitted sick certs for a period of time and the respondent had sought to refer the complainant to a doctor to which the complainant responded that she was waiting to see her own doctor.   The respondent advised the hearing that once it became aware of the complainant having suffered two family bereavements in a short period of time that they reduced their level of communication with the complainant in accordance with her stated wishes.   The complainant agreed that she had no longer wanted to communicate with the respondent.   The complainant advised the hearing that having to go to the doctor was putting her under more pressure. 

The respondent added that the complainant is still an employee and that there was no dismissal.    The respondent stated that complainant had not been dismissed nor had she submitted any resignation.  The complainant agreed that this was the position but added that she had not returned to work as she felt she could not return.  The complainant at the hearing was given an opportunity to outline her case and to substantiate her claim that she could not return to work.

In cases of constructive dismissal, the complainant must satisfy either the ‘Contract test’ or the ‘Reasonableness test’ in order to establish that they were left with no option but to resign their employment or to consider their employment terminated due to a breach of contract.

The complainant at the hearing failed to establish that her employment was terminated in accordance with either of these tests.   Accordingly, I am satisfied that the complainant was not dismissed or constructively dismissed from her employment with the respondent.

For the reasons cited above, I have decided that the complaint of unfair dismissal is not well founded.