ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00008329
| Complainant | Respondent |
Anonymised Parties | A Paramedic | Health Service Provider |
Complaints:
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-00011023-001 | 27/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011023-002 | 27/04/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00011023-003 | 27/04/2017 |
Date of Adjudication Hearing: 29/11/2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 27 of the Organisation of Working Time Act 1997,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The complaints under the Organisation of Working Time Act 1997 were withdrawn by the complainant’s representative prior to the hearing. The complaint under the Unfair Dismissals Acts is that the complainant had to leave her job due to the unreasonable behaviour of the respondent, in that the respondent failed to pay her an award made to her under Equality case DEC-E-2015-166 and that she was kept on sick leave when she was unable to carry out the full duties of her post. |
Summary of Complainant’s Case:
It is submitted that the complainant was constructively dismissed as a result of the actions of the respondent in refusing to pay her compensation awarded by an Adjudicator. The complainant also claims that by keeping her on sick leave and failing to provide her with reasonable accommodation for her disability also resulted in her constructive dismissal. It is submitted that the respondent breached a fundamental term and condition of employment by refusing to pay the complainant her award and failing to reasonably accommodate her. The complainant worked as an Emergency Medical Technician from 11 February 2002 until 1 November 2016 when she resigned her employment. Her letter of resignation cited her attempts on several occasions to seek alternative employment with the employer, and stated that she had no option but for her psychological, physical health and wellbeing to tender her resignation. The complainant was involved in a traffic accident in January 2012 when the ambulance she was driving was hit by an intoxicated driver. She was out of work until 15 July 2012. In or around 9/10 November 2012 she was involved in an accident at work. Thereafter the complainant was out of work until she left her employment. She lodged a claim under the Employment Equality Act 1998 on 19 May 2014, on the grounds of disability, failure to provide reasonable accommodation, discrimination on grounds of sexual orientation and victimisation. The Equality Officer found in her favour and awarded the complainant the sum of €18,000 in December 2015. The respondent appealed and then withdrew the appeal. Notwithstanding this withdrawal, the respondent refused to pay the award and enforcement proceedings commenced in March 2016. Following the lodgement of enforcement proceedings in the correct (Circuit) Court which case was to be heard on 4 September 2016, the respondent finally agreed to pay the award. The complainant left her employment on 1 November 2016 due to her treatment by the respondent. It is argued that her position as an employee was made untenable. Her treatment from when she initially was injured at work in January 2012 up to her resignation in November 2016 constituted a sustained campaign against her in order to force her to leave the respondent’s employment. This may not have been the intention of the respondent but it was the end result and it is how a reasonable person would perceive it. The failure to pay her the award, and the continuously delayed payments to her made the position untenable. It is impossible for person to continue to work in such an environment. It is acknowledged that the respondent’s reason for not paying the complainant the award was that it claims that it overpaid her while on sick leave. It is the complainant’s position that the respondent had no right to appropriate her award. |
Summary of Respondent’s Case:
Preliminary Issues The respondent’s representative raised a number of preliminary points: The case should be dismissed due to the fact that the details of the complaint were not lodged with the WRC and respondent until 8 working days before the hearing. The case should be dismissed as there was no detailed ‘complaint’ submitted within 6 or 12 months of the termination date. The WRC should decline jurisdiction as this issue has already been adjudicated upon in DEC-E-2015-166 and the complainant has been paid compensation. The rule of “Res Judicata” therefore applies. Finally the issue of loss is unascertained, and there is a likelihood of ‘forum shopping’ as the matters at hand are the subject of at least one personal injury claim which will consider loss of earnings. In the event that the preliminary points raised are not accepted, the following is a summary of the respondent’s arguments on the substantive issues: It is argued that the burden of proof in a constructive dismissal claim is on the complainant. The Employment Appeals Tribunal has held that the employee is only entitled to succeed in a constructive dismissal case where the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more essential terms of the contract.The EAT has also held that it is crucial in a constructive dismissal case that the employee fully informs the employer of the complaints being made against him and gives the employer the opportunity to resolve the problems. It is argued that in this instant case, there is absolutely no evidence that the facts set out by the complainant merited immediate resignation or that the resignation was not voluntary. The complainant was awarded compensation of €18,000 in December 2015. The respondent submitted an appeal to the Labour Court and subsequently withdrew that appeal on or about 24 August 2016. The complainant resigned about 7 weeks later. It is submitted that enforcement in respect of the Equality Officer’s decision has already been the subject of proceedings lodged before another forum, i.e. the Circuit Court and according the WRC has no jurisdiction to revisit this matter. It is submitted that a sum in excess of €23,000 was overpaid to the complainant in respect of Injury at Work payments. The complainant failed to agree a re-payment and failed to agree the award could be offset. This amount remains due by the complainant. It is denied that the delay in making payment of the award to the complainant in circumstances where the respondent was seeking to recover a payroll overpayment, amounts to a fundamental breach of a term and condition of the complainant’s employment or amounts to a breach of trust and confidence. The respondent submits that the alleged failure to provide reasonable accommodation has already been the subject of separate proceedings before another forum and the WRC has no jurisdiction to revisit this matter. In so far as it may be alleged that there was a failure since the date of the Equality hearing to provide reasonable accommodation, it is the respondent’s position that there were efforts to provide the complainant with reasonable accommodation but that each and every offer was declined by the complainant. Many efforts were made to accommodate the complainant. Subsequent to the decision of the Equality Officer, an offer to consider a clerical post was made and declined by the complainant, both before and after her resignation. It is denied that the respondent kept the complainant on sick leave. If an employee is not fit for normal duties then the employer cannot allow the risk to the employee to return to their normal duties. The most recent Occupational Health Report on the complainant prior to her resignation, specifically stated that she was unfit for patient transfer services though she was fit for office admin duties. The evidence is that the degree of impairment attributed to the complainant arising from her injury was 3% and accordingly the respondent anticipated that the complainant was likely to make a full recovery and would return in due course to her role. It was always open to the complainant to raise a grievance in accordance with procedures and it is argued that her failure to exhaust the internal procedures must be taken into account. |
Findings and Conclusions:
Preliminary Issues The respondent’s representative raised a number of preliminary points summarised as follows: The case should be dismissed due to the fact that the details of the complaint were not lodged with the WRC and respondent until 8 working days before the hearing. I find that the complaint form was received on 27 April 2017, and thus was within time. The requirement to submit details of the complaint is a procedural matter and not underpinned by law. The case should be dismissed as there was no detailed ‘complaint’ submitted within 6 or 12 months of the termination date. I find that the date of termination of the complainant’s employment was 1 November 2016 and the complaint of constructive dismissal was received on 27 April 2017, and therefore within time. There is a requirement in the procedures to submit details but this is not underpinned by law. The WRC should decline jurisdiction as this issue has already been adjudicated upon in DEC-E-2015-166 and the complainant has been paid compensation. The rule of “Res Judicata” therefore applies. I note the evidence of the complainant’s representative at the hearing that there is no wish on the part of the complainant to revisit the substantive issues raised in the Equality case, rather the conduct of the employer and tests of constructive dismissal is the issue. The issue of loss is unascertained, and there is a likelihood of ‘forum shopping’ as the matters at hand are the subject of at least one personal injury claim which will consider loss of earnings. I find that as I have no evidence of any outcomes of personal injury claims, I cannot deny the complainant her hearing in this instant case. I therefore find that the preliminary issues raised by the respondent are not an impediment to hearing and deciding on this instant case. In relation to the substantive claim of constructive dismissal I find as follows: The definition of constructive dismissal as provided in the Act is: “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” In order to succeed in her case, the complainant must demonstrate that the conduct of the employer was such that she was entitled to terminate her employment with or without notice. There is, in this instant case, a long history of difficulties between the parties since the accident in January 2012. Many of the issues have been subject of litigation and decisions in at least two other forums. I do not propose to revisit those issues and confine my findings to what happened between the complainant and the respondent in the final year of her employment. There were three main issues which impinged on the employment relationship in that period. One was the long delay in payment of the Equality award. The second was the issue of whether the complainant was being offered a reasonable alternative employment with the respondent. The third issue was the repeat of the complainant’s difficulties with non payment of wages. Underpinning some of these issues, it would appear that the respondent was trying unsuccessfully to recoup the overpayment of wages. I find that the long delay in payment of the award to the complainant was caused in part by the respondent’s wish to have the overpayment of wages recouped and that while the principle of appropriating any award is not acceptable legally, the respondent did not act unreasonably in this matter. In relation to the non payment of wages from July 2016, I have been provided with no evidence as to the reason for this. It might be assumed that the attempts by the respondent to recoup overpayment of wages may have been connected to this. However, long periods of no communication or reply from the respondent to the complainant’s enquiries served to exacerbate an increasingly difficult situation which ultimately led to the complainant’s claim of ‘abandonment’ of her by the employer. In relation to the issue of whether in July 2016, the respondent offered a reasonable alternative employment to the complainant I find that the request for an “expression of interest” for Administrative Support jobs was not a concrete alternative. There was some conflict of evidence around the situation. I note that the complainant considered that she was being asked to apply for a job at a considerable financial loss and loss of pension rights. The respondent may have fallen short of clarifying the situation for her and the situation may have been more positive. However, throughout this process and the process of recouping wages, the complainant fell short of meaningful communications with the complainant. I conclude that the respondent in this case acted in such a way as to leave the complainant with no option but to resign her employment and I uphold her complaint. I note that the complainant did not utilise the grievance procedures, and I have taken this into account. I do not consider this to be fatal to her case and I note the occupational health report of 30 June 2016 makes note of her grievances. I uphold the complainant’s complaint and I award her the sum of €10,000. |
Decision:
I uphold the complainant’s complaint and I award her the sum of €10,000.
Dated: 5th April 2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham