ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005496
Parties:
| Complainant | Respondent |
Anonymised Parties | A Maintenance Electrician | A Hospital |
Representatives | F. Doyle BL instructed by Francis B.Taaffe & Co Solicitors | Manager - Employee Relations Department. |
Complaint(s):
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-00007710-001 | 19/10/2016 |
Date of Adjudication Hearing: 12/12/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The case is one of a claim of Constructive Dismissal by the Complainant. After a period of absence and a Dignity at Work investigation involving incidents of Bullying by a colleague directed towards him he felt that he had been left with no option but to resign when the Employer made efforts to get him back to work. |
1: Summary of Complainant’s Case:
The Complainant alleged that he was effectively forced to leave his employment due to continued incident so Bullying and Harassment. These matters had a history going back to 2004 and largely centred on a difficult relationship with a fellow colleague. The investigation in the early 2000s had not really resolved matters and the situation had limped along. The renewed incidents with the same colleague in late 2013 had been most upsetting and had triggered serious ill health. As a consequence, the Complainant was forced to go on Sick leave in January 2014. An Investigation report into the incidents was undertaken but took over two years to reach a “draft report stage”. It appeared to the Complainant that the alleged Perpetrator had received a Draft Report in late 2014 although he had to wait until well into 2016 to receive a copy. This was despite repeated requests to the Respondent from his Solicitor. Furthermore, even at this late stage is was still described as a “draft”. In the summer of 2016 he felt he was being pressurised by the Respondent to return to work even though the issues that lead to his sick leave had not been addressed satisfactorily. He felt that he had no option but to resign from his employment rather than return to work. |
2: Summary of Respondent’s Case:
The Complainant was absent on Sick leave from January 2014 until his resignation in August 2016. During this period, he submitted medical reports for various medical conditions. It was accepted that alleged Bullying and Harassment (B&H) incidents in late 2013 with a fellow employee had led to a Dignity at Work Investigation taking place in 2014. Unfortunately, this took over two years to complete. However, at no stage in the Complainants absence had he ever referenced this as the cause of his Sick Absence. The prolonged processes and delays in the production of a Draft Dignity at Work Report were regretted. However, the Investigators had had difficulties in getting inputs from both the alleged Perpetrator and the Complainant in late 2014. During late 2014, throughout 2015 and up to Summer of 2016 the Respondent made numerous efforts to meet with the Complainant to discuss his return to work. The Respondent offered assurances regarding how this could be managed and specifically regarding any B & H concerns of the Complainant. It was asserted that possible physical relocations could be considered to facilitate the Complainant as regards daily interactions with certain other colleagues. The Complainant failed to actively engage in these proposed return to work meetings. The requests culminated in a suggested meeting on the 1st September 2016 to discuss “supports available and to see what we can do to facilitate your return to work”. (Respondent letter of the 12th August to the Complainant). The Complainant declined to meet and submitted a resignation letter dated the 24thg August 20165. The Respondent exhibited extensive correspondence between the parties and strongly maintained that they had done everything in their power to encourage the Complainant back to work. He was, most categorically, never Dismissed. |
3: Findings and Conclusions:
3:1 The Law and Constructive Dismissal. This case is one of Constructive Dismissal. It is now well accepted law that a Constructive Dismissal case rests on two legal tests. A) Fundamental Breach of the Contract of Employment by the Parties /normally the Employer, of such a serious nature that the Employee has no option but to resign B) Behaviours of such an unreasonable and egregious nature by the Employer that the normal employee has no option but to resign. If an employee can establish that one or both of these Tests are in his favour then a claim for Constructive Dismissal is well founded. I will review this case in the light of the above legal tests.
3:2 Fundamental Breach of the Contract of Employment by the Parties. In evidence given it was clear that at all times the Actions of the employer had been in keeping with the terms of the Contract of Employment. The Complainant continued to be paid until his sick leave was exhausted. His employment status was at all times recognised as being permanent. The delays in the Dignity at Work Investigation were regrettable but in no way could they be seen as constituting a fundamental breach of the Contract of Employment. The processing of the resignation letter of the 24th August was indicative of an employer that was not anxious to end the employment relationship. The Respondent has detailed end of employment procedures and formal termination forms to be completed. Even by the date of the Hearing in December 2017 it was unclear if these had been actioned. The Complainant may still have been on the Staff Listing/Establishment for 2017. Any issue of a general Health and Safety nature regarding the Bullying and Harassment incidents appeared to have been addressed with the offers of a supported Return to Work and offers /suggestions to consider a physical relocation even if these came to nothing. From a careful review of all the evidence presented I did not come to the view that a Fundamental breach of the Employment Contract had taken place sufficient to ground a Constructive Dismissal claim. 3:3 Unreasonable Behaviours by the Parties. In a Constructive Dismissal case the behaviours of the parties, normally the Employer or Respondent have to be of such an egregious, almost outrageous, nature as to warrant the Complainant resigning. In this case, there was a history of incidents between the Complainant and another staff member going as far back as 2004. Their personal relationship could, as best, be described as fraught. This was recognise by the Maintenance Manager, Mr. Ax, who gave oral evidence. The Manager did not feel it to be such as to prevent the two individuals working together. The 2013 incidents were the subject of a full investigation and Inquiry under the Dignity at Work policy. It certainly was not helpful that the finalisation of this Inquiry took almost two years but this could hardly be described as an employer behaviour likely to lead to a resignation. Delays in Dignity at Work investigations are not an uncommon feature of the Organisation nationally. During the absence of the Complainant from January 2104 to August 2016 the Respondent Hospital kept in regular contact and made several efforts to encourage a return to work. The Maintenance Manger gave oral evidence to this effect. He was of the clear view that the Complainant was a skilled electrician who was most valuable to the Organisation and was a staff resource to be retained. The approach being adopted by the Manager was to be always supportive of the Complainant even to the extent of having physical relocation to keep distance from the other staff member. The argument advanced that the Complainant could not return safely to work until the Dignity at Work Report was published I did not find credible particularly as the Respondent was being supportive of a supported Return to Work. In his evidence the Complainant did not give any realistic explanations as to why he did not participate more fully in the return to work approaches of his Manager. He clearly gave the impression of an employee who had effectively disengaged from his employer. The Assistant Hospital manger also gave oral evidence of her efforts to encourage the Complainant back to work and to manage his absences in a supportive manner. She did not give the impression of a Manger anxious to dismiss the Complainant. Having considered all the evidence both oral and written I had to conclude that none of the behaviours of the Respondent could qualify as being so unreasonable as to justify a Constructive Dismissal claim. 3:4 Summary and conclusion Having reviewed the evidence and applied the two Constructive Dismissal tests to this case, as outlined above, I had to come to the conclusion that the Resignation of the 24th August 2016 was a considered decision and no case for Constructive Dismissal exists. The claim is dismissed.
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4: Decision:
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.
Act | Complaint/Dispute Reference No. | Summary Decision /Refer to Section 3 above for detailed reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00007710-001 | Claim for constructive Dismissal is not well founded. Claim is dismissed. |
Dated: 3rd May, 2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
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