ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018430
Paul Twomey B.L. instructed by Kate McMahon & Associates, Solicitors.
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 05/02/2019
Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.
The complainant had been employed as the ‘Housekeeping Supervisor’ and was initially employed in November 2008. He resigned on June 11th, 2018 and claims that he was constructively unfairly dismissed.
Summary of Complainant’s Case:
The complainant says that, following a series of events he was left with no option but to resign from his employment.
There had been an external audit of the respondent in respect of operations which formed part of the complainant’s area of responsibility; cleaning of the hospital. This took place while the complainant was on leave.
This resulted in disciplinary action against the complainant and removal of responsibility for the work at the centre of the audit.
This was the beginning of the complainant being undermined and effectively demoted. He was shadowed by and asked to report to a contractor who had been engaged to undertake work in the complainant ‘s former area of responsibility.
The contractor also made weekly reports which were hostile to the complainant.
In due course the complainant was so affected that he went on sick leave on November 17th 2018.
He did not return to work and resigned on June 11th, 2019.
The complainant says that there was a fundamental breach of the respondent’s duty of care to him and that he was justified in resigning.
Summary of Respondent’s Case:
The respondent was placed in a position by the external audit that required it to take immediate corrective action in relation to a critical area of its operations; the cleanliness of the hospital. This involved the appointment of external cleaning contractors which led to an immediate improvement in the situation.
The contractor also provided training to the complainant and the relevant staff and he was invited to observe and learn from the improved practise.
The disciplinary action only followed when he failed to respond to informal counselling and in any event resulted only in a first level warning.
In the circumstances of the difficulties facing it the respondent acted in a measured and appropriate way.
The complainant went on sick leave after being issued with the warning in November 2017.
Following certification of the complainant’s fitness to do so he was engaged in a process to review the options for a return to work and a meeting to this end took place in June 2018.
The parties had a discussion about his return to work and he was given seven days to consider the outcome of the meeting.
To the respondent ‘s surprise he resigned before that period for reflection had expired.
The respondent replied giving him a further seven days to consider the position, but three days later he wrote saying that he did not wish to continue to engage on the matter.
The respondent submits that it is a requirement for a constructive dismissal that a complainant avail of any internal grievance machinery to process their grievance. The complainant did not do so, nor did he give notice or provide any reasons for his resignation.
A number of authorities were submitted in support of its contention that the burden of proof that falls on a complainant in a case of constructive dismissal is a high one. The employer must be found to have significantly breached the contract of employment ‘going to the root of the contract’ and showing that it no longer intends to be bound by the contract.
The complainant does not reach these levels of proof and he was not dismissed but resigned.
The respondent made every effort to support him prior to his absence on sick leave and to facilitate his return to work, even after his initial resignation.
Findings and Conclusions:
A constructive dismissal takes place when an employer’s behaviour is so unreasonable that the employee is justified in unilaterally breaking the contract. The burden of proof is set high in such cases for the same reason that it is in unfair dismissals cases where the employment has been terminated by the employer.
A breach of the employment contract sufficient to fall under the Unfair Dismissal Act must be very serious and well justified.
In this case the complainant had been on a prolonged absence from employment on sick leave. The events leading up to that sick leave were obviously significant for the complainant and it appears from his submission that they had a very adverse effect on him.
However, no fault can be attached to the respondent in that regard. Its actions were necessary and measured and indeed they had very little choice, if any, in the matter.
They then approached the possibility of the complainant’s return to work with, on the basis of the evidence, due sensitivity after the passage of several months.
The complainant’s reaction was to submit his resignation and when offered a ‘cooling off’ period he confirmed his intention to resign.
In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, this is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.
The Supreme Court has said that ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’ Finnegan J in Berber v Dunnes Stores  E.L.R. 61
The respondent submitted a number of authorities from the EAT and the WRC Adjudication Service which added further to this by means of the ‘contract’ and ‘reasonableness’ tests which flow from the Berber decision.
From the above facts, and judged by reference to the Berber test, and the general principles applicable to a constructive dismissal this complaint falls very far short of what is required both in respect of the employer’s and his own conduct, in particular the failure to avail of any mechanisms to have whatever grievance he may have had properly addressed.
Accordingly, the complainant has not met the test that would establish constructive dismissal and his complaint fails. His claim for payment of notice therefore also fails.
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.
For the reasons set out above I do not uphold complaints CA-00023682-001 and 002 and they are dismissed
Dated: 27th March 2019
Workplace Relations Commission Adjudication Officer: Pat Brady