UDD2138

1. An appeal of an Adjudication Officer's Decision No(s) ADJ-00015089 CA-00019623-001

BACKGROUND:

2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing in a virtual setting took place on 28 April 2021. The following is the Determination of the Court:-


DETERMINATION :

This is an appeal by Mary Cawley (hereafter the Complainant) against Adjudication Officer’s Decision ADJ-00015089 given under the Unfair Dismissals Act 1977 to 2015 (the Act) in a claim that she was unfairly constructively dismissed by her former employer, National Council for the Blind of Ireland (hereafter the Respondent). The Adjudication officer held that the Complainant resigned from her employment and was not constructively dismissed.

Background

The Complainant commenced employment with the Respondent in September 2004 as a Community Resource Worker. It is the Complainant’s complaint that she was left with no choice but to resign, after enduring bullying and harassment and unreasonable and excessive workloads. It is the Respondent’s case that they investigated the Complainant’s allegations which were not upheld. The Complainant did not have an excessive workload and it was her decision to resign. The Complainant was on sick leave from the 26^th October 2017 until the 27^th March 2018 when she resigned her position.

Summary of Complainant’s case

It is the Complainant’s submission that she lodged a Bullying and Harassment complaint with the assistance of her Union against another member of staff in 2015. The Complainant appealed the outcome as she was unhappy with same. As this issue was not resolved to her satisfaction the Complainant believed she had no option but to apply to work in a different location. In January 2016 she responded to an internal advertisement for a Community Resource Worker in Waterford. Shortly after taking up that role the Complainant was asked to cover for a colleague who was going on maternity leave. Later that year she was asked to cover for another colleague who was on leave for a month. It is the Complainant’s submission that in January 2017 she ceased covering the maternity leave as the person had returned to work. However, another worker announced he was leaving the area and the Complainant was told she would have to cover all of the County of Waterford. It is the Complainant’s submission that she advised management that she could not do that as it would involve too much driving. On the 26^th January 2017 she met with her manager Ms McCarthy who presented her with details of caseloads of other workers that seem to indicate that her workload was not out of kilter with other members of staff , but it is her belief those figures were inaccurate. On the 6^th March 2017 the Respondent wrote to the Complainant and advised that they were invoking the disciplinary procedure because she had failed to take on the additional work. The charge against her was failure to obey a reasonable instruction i.e. take on the additional work. The Complainant attended a disciplinary hearing with her Union Official and the outcome of same was that she was issued with a verbal warning. The Complainant appealed that decision but was unsuccessful. The Complainant continued to highlight the fact that covering the whole of the County of Waterford was not manageable. The Complainant had a number of health issues which she brought to the Respondent’s attention. The Complainant attended with the Respondent’s Occupational Health Specialist on the 12^th October 2017. The Respondent then instructed the Complainant to go on certified sick leave. The Complainant returned to work on 23^rd October 2017. On the 26^th October 2017 the Complainant was certified unfit for work by her GP. On the 18^th January 2018 she again attended the Respondent’s Occupational Health Specialist who certified her fit to resume work in a week. It is the Complainants submission that on the 19^th January 2018 she attended her own GP who certified her as unfit for work. The Respondent then wrote to her on the 8^th February 2018 enclosing a copy of the Occupational Health Report and looking to meet with her on the 28^th February 2018 to discuss same. It was the Complainant’s submission that her solicitor had responded to that correspondence indicating that they would both attend the meeting on the 28^th of February. The Complainant on the 23^rd February submitted a further medical certificate from her GP. On the 14^th March the Complainant was asked to attend a further independent medical assessment. The Complainant’s solicitor responded on the 20^th March advising that she would not be attending and requesting that she be provided with her P45. The Complainant resigned from her position on the 27^th March 2018. The Complainant obtained alternative employment on the 29^th May 2018.

Summary of Respondent’s case

The Respondent submits that dismissal is in dispute. The Respondent investigated all the complainants the Complainant raised. However, she was not happy with the outcome. The Respondent sought to engage with the Complainant around her workload, but the Complainant refused to take on the duties even thought she had capacity once the other worker had returned from maternity leave . The Complainant was represented by her Union Official in respect of the engagements around her workload. The Complainant went out sick on the 26^th October 2017. The Respondent arranged for the Complainant to be seen by their Occupation Health Specialist on the 19^th December 2017 in Dublin. The Complainant had an issue with travelling to Dublin, so the appointment was re-arranged for 18^th January 2018 in Waterford. The report from the Occupation Health Specialist stated that the Complainant was fit for work and was fit to attend a meeting to discuss her work- related issues. The Respondent wrote to the Complainant inviting her to attend a meeting advising that she could be accompanied by her Union Official , work colleague or a family member. The Complainant responded advising that she wanted to bring her solicitor. The Respondent advised that in line with their procedures, as it was an internal matter that it was not appropriate to have a solicitor in attendance. Further correspondence was exchanged with the Complainant, however, by email of the 23^rd of February the Complainant advised she would not be attending the meeting and attached a hand- written note from her GP stating that she was not medically in a position to return to work. The meeting scheduled for the 28^th February 2018 did not take place. On the 14^th March 2018 the Respondent wrote to the Complainant advising that as they now had conflicting medical opinions in respect of her fitness to return to work, they required her to attend an independent Occupational Health Specialist. On the 20^th March 2018 the Respondent received a letter from the Complainant’s solicitor advising that she would not be attending the Occupational Health Specialist and that she intended the last certificate from her GP to indicate her termination of her employment the letter went on to say that the complainant would be pursuing a constructive dismissal claim. The Respondent wrote to the Complainant on the 26^th March 2018 asking that she reconsider her decision, and that she attend the appointment with the independent medical assessor. On the 27^th March the Complainant responded confirming that she had tendered her resignation and requesting her P45 be issued. On the 28^th March 2018 the Respondent wrote to the Complainant advising that they had not actioned same and asking her to confirm that she had given consideration to her decision to resign. On the 29^th March 2018 the Complainant confirmed her resignation.it is the Respondent’s submission that there was no dismissal the Complainant made an informed decision to resign her position.

The applicable law

Section 1 of the Act defines constructive dismissal in the following manner

“ 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,”

“ 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”.

Issues for the Court

As dismissal as a fact is in dispute it is for the complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal as that term is defined by the Act.
Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard him-self or herself as having been dismissed. This is, often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test”
an employer must be “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” as held
Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, he is justified in leaving.

Discussion
The Complainant in her submission did not point to any fundamental breach going to the root of her contract therefore the question that arises for decision in this case is whether, it was reasonable for the Complainant to terminate her employment because of the Respondent’s conduct.
The Respondent investigated issues raised by the Complainant and sought to engage with her in respect of her concerns around her workload. However, despite being offered a meeting to discuss her concerns and her return to work the Complainant would not agree to same. The Complainant also declined to attend an independent medical assessment and when given to opportunity to reconsider her decision to resign chose not to do so but to re affirm her decision to resign.

Findings of the Court.

The net issue for consideration is whether the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Act. In reaching its conclusion on that question the Court has carefully evaluated the written submission made by the parties .
In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (see Conway v Ulster Bank Limited UDA474/1981).

In Beatty v Bayside Supermarkets UD142/1987, in referring to the need to utilise grievance procedures, Employment Appeals Tribunal held:-

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

On the facts of this case the Court cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle her to terminate her employment.

Determination

In all the circumstances, the Court cannot find that the Respondent’s conduct was unreasonable or could justify the Complainant’s terminating her employment by way of constructive dismissal nor was such as to show that the Respondent no longer intended to be bound by one or more of the essential terms of his contract of employment. Accordingly the court must hold that the Complainant’s employment did not come to an end by dismissal.

The Court determines that the Complainant’s complaint is not well founded. The appeal is rejected. The decision of the Adjudication Officer is affirmed.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
DC	______________________
14 May 2021	Deputy Chairman