ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00003199
Complaints for Resolution:
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-00004629-001 | 20/05/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 |
CA-00004629-002 | 20/05/2016 |
Date of Adjudication Hearing: 02/02/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Location of Hearing: Room G.07 Lansdowne House
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant was employed from 9th October 2010 until the Complainant terminated the employment on 21st March 2016. He was paid €2240.00 gross per month, being €14.00 an hour, and he worked 40 hours a week. The Complainant referred a complaint to the Workplace Relations Commission on 20th May 2016 alleging the Respondent had breached Section 19 of the Organisation of Working Time Act, 1997 – 2015 and a complaint under the Unfair Dismissals Act, 1977 that he had been constructively dismissed by the Respondent. The Complainant confirmed at the Hearing that he had commenced employment on 2nd August 2016, was working 2/3 days a week, 8 hours each day and was paid €14.27 an hour. He also stated that he had commenced Education 2 days a week effective from September 2016. |
Summary of Complainant’s Case:
Organisation of Working Time Act, 1997: The Complainant is claiming payment in respect of 41.23 days annual leave accrued on termination of the employment and not paid. Unfair Dismissals Act, 1977 – 2015. The Complainant stated that he suffered a heart attack at work On 30th May 2014. He stated that he had been required to work over his required hours of 40 hours a week during April and May 2014. The Complainant’s Solicitor outlined a number of grievances to the Respondent by letter dated 27th October 2015, following which the Complainant was requested to lodge his Grievance under the formal grievance and Disciplinary Procedures of the Company which the Complainant did on 23rd November 2015. The Complainant was invited to attend a Grievance Hearing on 3rd December 2015. The Complainant was afforded a right of representation and he nominated his wife to accompany him. His Grievance was heard on 9th December 2015 and the outcome was confirmed by letter dated 17th December 2015. His complaints were not upheld and he was afforded a right of appeal. The Complainant at this time was on certified sick leave. The Complainant appealed the outcome by letter dated 21st December 2015 and he confirmed that he did not set out his grounds of appeal. The appeal hearing was set for 6th January 2016. A meeting took place on 11th January 2016 and was rescheduled for a further date to 26th January 2016. However his Solicitor wrote to the Respondent on 9th February 2016 requesting the outcome of the appeal and this was provided to the Complainant by letter dated 24th February 2016. The outcome letter identified a response to 16 issues raised by the Complainant and the outcome was to uphold 3 issues, 2 issues were partially substantiated and 11 issues were not substantiated. The Complainant resigned his position by letter dated 21st March 2016 stating” Due to the seriousness of the issues raised in my grievance and what I can only describe as a failure on behalf of the company to properly investigate same I feel that all trust and respect between the company, my co-workers and me has completely dimished. I feel I cannot return to (named). |
Summary of Respondent’s Case:
Organisation of Working Time Act, 1997 – 2015. The Complainant is claiming an entitlement to 41.23 days annual leave. The Complainant was paid 67.39 hours of annual leave in the sum of €1211.27 in November 2014 – Payslip provided. The Complainant was paid 26 hours of €360.36 accrued annual leave wile on certified sick leave on 30th March 2016 – payslip provided. He received a cheque on 2nd June 2016 for the remaining 80 hours due in the sum of €1108.80 – payslip provided. This was done after the Complainant had furnished the Respondent with medical certificates to cover his sick leave. The Complainant was entitled to accrue annual leave while on sick leave effective from 1st August 2015 in accordance with Sec tion 86(1) of the Act. The Complainant was entitled to accrue annual leave while on sick leave from 1/8/2015 to the date of his resignation on 21st March 2016. Unfair Dismissals Act, 1977 – 2015 The Complainant suffered a heart attack while at work on 30th May 2014 and he was immediately attended to by an Assistant Director of Nursing and transferred to Hospital. He commenced a period of sick leave up to August 2014 and he continued to submit medical certificates up to September 2015. The Complainant was invited to attend a welfare meeting on 29th September 2014, during this meeting the Complainant stated he would be meeting with his Consultant in December 2014 concerning a possible return to work. He was advised of the Employee Assistance Programme. A further welfare meeting took place on 10th April 2015 and the parties agreed that the Respondent contact his doctors re a medical report and the Company wrote to a named Doctor on 8th May 2015 and they received a response dated 4th August 2015 confirming the Complainant was unable to return to work. The report also stated that the Complainant was not fit to work in an environment in which he had suffered a heart attack. The Respondent received a letter dated 2ND October 2015 from the Complainant’s Solicitor indicating the Complainant was planning to resign on the basis he was suffering from stress and anxiety as a result of his heart attack and he was worrying about his return to work. The Complainants Solicitor wrote again to the Company on 27th October 2015 specifying 8 days between April/May 2014 in relation to his hours worked and that the Complainant would forward his letter of resignation. The Complainant tendered his resignation by letter dated 3rd November 2015. He made no reference to stress or anxiety regarding his employment. He was asked to reconsider his position by letter dated 16th November 2015 and referenced issues the Complainant’s Solicitor had identified in the letter of 27th October, issues the Respondent were not aware of until that letter. He was invited to put his concerns in writing so that they could be investigated which he did on 23rd November 2015. A meeting was arranged for 3rd December 2015 and the Complainant was accompanied by his wife. There were eight issues between April and May 2014 and these were discussed. The issues raised seemed to stem from his hours of work as he was receiving calls and treats to cover other employees. The Complainant stated at the Hearing that he had Previously intended to resign but then had his heart attack. The Complainant named three other employees who were all interviewed as part of the investigation. The Complainant was informed of the outcome on 17th December 2015 and his allegations were found not to be substantiated. He was afforded a right of appeal. The Complainant appealed on 21st December 2015. He attended the appeal hearing on 11th January 2016. At this meeting the Complainant’s wife stated she felt guilty as it was she who urged him to take on extra shifts. He was invited to a reconvened meeting on 26th January 2016 and was rescheduled to 3rd February and again to 10th February at the Complainant’s request. In the interim the Complainant’s Solicitor wrote to the Respondent requesting that the Complainant be issued with the outcome of the appeal. The Respondent in its letter dated 24th February 2016 dealt with each issue and issued a decision in relation to each and found some grounds were substantiated but the majority were not. The Complainant resigned on 21st March 2016 and his resignation was accepted on 30th March 2016. The Complainant’s Solicitor wrote to the Respondent in April 2016 in relation to payment for annual leave and the Company responded stating as they had not received any medical certificates since October 2015 they were unable to make payment. The Respondent argued that the Complainant had a heart attack on 30th May 2014 and they were unaware the Complainant had any issues until he initially resigned in November 2015. It was the Respondent who invited the Complainant to submit his grievances. The Complainant then failed to exhaust the policy when he failed to complete the appeals process. The Respondent acted reasonably and fair in relation to the Complainant at all times. |
Findings and Conclusions:
Unfair Dismissals Act, 1977 -2015 CA-00004629-001 On the basis of the evidence and submissions from the Parties I find as follows- Both Parties confirmed that the Complainant had been issued with a written statement of his Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Company. Both Parties confirmed that the Complainant did not lodge any grievance with his Employer before November 2015 when he was invited to do so by the Respondent after his resignation letter of 3rd November 2015 and a letter from his Solicitor dated 27th October 2015. He was invited to submit his grievances which were clearly concerned with hours of work in April/May 2014 just prior to his heart attack at work. Both Parties confirmed that the Complainant agreed to participate in the Grievance Process and the Hearing took place on 3rd December 2015. The outcome was that his complaints were not substantiated. He was afforded a right of appeal which he did and the Appeal Hearing took place on 11th January 2016 and he was invited to attend reconvened meeting again on three further occasions in January and February 2016 but he did not do so and his Solicitor requested the Respondent to issue the findings of the appeal. This was done by letter dated 2nd February 2016. Both Parties confirmed that the outcome of the one Appeal Hearing held was issued to the Complainant on 24th February 2016. The Complainant confirmed at the Hearing the reason for not continuing with the internal appeals process was because of his lack of confidence in the process. The Complainant resigned on 21st March 2016. Section 1 (1) of the Unfair Dismissals Act, 1977 defines what is commonly described as “constructive dismissal” as follows : dismissal in relation to an employee means-(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 thetermination to the employer”. The distinction between the two limbs of this section is summarised by the Labour Court in Paris Bakery & Pastry v Marzljak DWT 68/2014. The first applies where the “employer behaves in a way that amounts to a repudiation of the contract of employment” and the second applies where “the employer conducts 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”. There was no evidence presented to me that the Respondent had repudiated the contract of employment. Therefore the second element of this section applies to the decision of the Complainant to resign and if in the circumstances of this case it was reasonable for the Complainant to do so in circumstances where the employer can be deemed to have acted in such an unreasonable manner in relation to the employee as to justify his resignation. The evidence was that the Complainant suffered a heart attack while at work on 30th May 2014 and remained on sick leave until he tendered his resignation for a second time on 21st March 2016. The Complainant had originally tendered his resignation on 3rd November 2015. This followed a letter dated 27th October 2015 in which the Solicitor made a number of allegations concerning hours worked by the Complainant during April (4 days)/May 2014 (four days). The Respondent had not been made aware of these issues in 2014 and both Parties agreed that the grievance should be conducted through the internal grievance process which commenced on 3rd December 2015. The outcome did not substantiate the complaints and an Appeal Hearing took place on 11th January 2016. The evidence shows that the Respondent wished to explore the grievance in more detail and further meetings were scheduled for January 2016 and February 2016. The Complainant did not attend any of the rescheduled hearings and his Solicitor requested he be informed of the outcome when she wrote to the respondent on 2nd February 2016. The outcome of the abbreviated appeal hearing was issued on 24th February 2016 and some of his complaints were substantiated. I note that the Complainant was certified as medically unfit for work up to 21st March 2016 according to a medic al certificate submitted to the Respondent dated May 2016. I further note that according to a statement received from the Department of Social Protection which confirms that the Complainant was in receipt of Jobseekers Benefit from 25th July 2016 to 21st February 2017 The Complainant worked a total of 377.5 hours between August 2016 to 21st February 2017 and he commenced an education course on 28th September 2016 to end in May 2017 over 3 days each week. I further note that the Complainant has initiated a Personal Injury Claim on 5th December 2014 Organisation of Working Time Act, 1997 CA-00004629-002 This complaint was lodged with the WRC on 20th May 2016 therefore in accordance with Section 23 of the Act, the annual leave year is the 2015/2016 annual leave year. I was provided with payslips in relation to annual leave paid from 2014 to June 2016. This shows that the Complainant was paid 67.39 hours of annual leave of €1211.27 - €360.36 for 26 hours in March 2016 on foot of accrued annual leave while on sick leave from 1st August 2015 to October 2015 based on medical certificates submitted. The Complainant was paid €1108.80 on 2nd June 2016 to cover 80 hours of accrued annual leave while on sick leave up to 21st March 2016 when the Respondent was furnished with a medical certificate by the Complainant. The Complainant confirmed receipt of these payments. Section 86(1) of the Workplace Relations Act, 2015 amended the Organisation of Working Time Act, 1997 to provide for accrued annual leave while on certified sick leave from the employment. This was to bring the OWTA, 1997 into line with a number of decisions of the Court of Justice of the European Union. Accordingly the Complainant became entitled to payment for accrued annual leave effective from 1st August 2015 to the date of his resignation on 21st March 2016. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Organisation of Working Time Act, 1997 – 2015 CA-00004629-002 In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded. The Complainant has been paid his annual leave entitlements accrued while on sick leave from 1st August 2015 to 21st March 2016 Unfair Dismissals Act, 1977 – 2015 CA-00004629-001 In accordance with Section 8(1) (c ) of the Act, and on the basis of my findings above, I declare this complaint of constructive dismissal is not well founded. |
Dated: 03/05/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin