ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028293
An Operations Coordinator
A Facilities Management Service Provider
Shonagh Byrne SIPTU
Ken Stafford Management Consultancy Services
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Dates of Adjudication Hearing: 1st October and 16th November 2020
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 22nd May 2020, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Unfair Dismissals Act. The complaint was scheduled for adjudication on the 1st October and the 16th November 2020.
The complainant attended the adjudication and was represented by Shonagh Byrne, SIPTU. Two witnesses gave evidence on her behalf, referred to in this decision as the contractor and the colleague. The respondent was represented by Ken Stafford Management Consultancy Services. Two witnesses gave evidence on its behalf, referred to in this decision as the Managing Director and the line manager.
An in-person adjudication hearing took place on the 1st October 2020 and the hearing was completed remotely on the 16th November 2020. Following the hearing, the respondent submitted a photograph of the office in response to the photograph submitted by the complainant.
In accordance with section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
On the 12th May 2020, the complainant resigned from her employment. The complainant and two colleagues had been on certified sick leave following what they say was their employer’s refusal to address Covid-19 related health and safety concerns they raised about the workplace. The respondent denies this and denies that the complainant was entitled to consider herself to have been constructively dismissed. The complainant’s employment commenced on the 1st May 2014 and she was a facilities operations coordinator, based at a client (a university) and she earned €742.50 per week.
Summary of Complainant’s Case:
The complainant outlined that she was constructively dismissed from her employment. She sought financial loss arising from the dismissal as well as compensation for the period of sick leave from the 18th April 2020. She outlined that the on-call issue and the issue of Sunday work were never addressed by the respondent. There was also no apology for the incident of the 13th March 2020.
The complainant outlined that her role was that of coordinator and she provided support to the client university Accommodation Manager. There were some 3,200 rooms to accommodate students. The role involved checking in and out as well as maintenance. The client employs front of house staff and there were three coordinators, all of whom worked office hours.
In respect of the 11th May 2020, the complainant said that she was working on an important procurement tender for furniture. This would have been the complainant’s first completed tender. This was due to complete on the 13th May 2020, but the area manager took this function off her on the Monday. She was told to instead complete the handover document for the ‘Operations Coordinator’ role. The respondent had sought a training manual for the role as the existing manual needed to be updated.
In respect of the impact of the Covid-19 pandemic, the complainant said that she dealt with the very challenging period of students leaving their accommodation. About 10% of the accommodation, however, remained occupied throughout this period. The complainant then availed of certified sick leave.
The complainant said that it was only after her return from sick leave on the 11th May 2020 that the respondent did anything to address their concerns regarding Covid-19. She met with the respondent, who briefed her on the health and safety measures. The complainant outlined that she had raised her request to work from home as part of the grievance. She explained the nature of the work and suggested the option of rotating their presence in the office. The respondent informed her that measures had been put into place, but this was not the case.
The complainant said that she found the meeting to be stressful and that she was under pressure. She met with two named managers, who raised that she could be subject to a disciplinary process. She said that they were pushy. She referred to the meeting as intimidation. She informed the respondent that she wished to speak with her trade union. The line manager asked her to continue to work as normal that day.
The complainant outlined that the respondent now wished to use a general email address, rather than each operations coordinator having individual email addresses. She was to forward her work emails to this new address. She refused to supply her password to the respondent, saying that this would be in breach of the client IT policy.
The complainant said that the respondent managers had behaved appalling at the February meeting to discuss their complaints. There was no notice of the meeting and no investigation. It was meant to be a five-minute meeting. She was distressed at the meeting while her two colleagues started to cry.
The complainant outlined that the respondent did not contact her following her resignation, although she was notified of being paid for outstanding annual leave and TOIL. A colleague resigned on the 6th May as she had not been happy to return to work.
In respect of mitigation, the complainant said that she commenced a new role on the 8th June 2020, and this role was paid more than her employment with the respondent.
Cross-examination of the complainant
It was put to the complainant that the client had supplied a laptop as a reserve; she replied that the client had supplied the laptop to facilitate working from home. It was put to the complainant that she was advancing contradictory positions, i.e. complaining of tasks being taken off her while complaining of too much work. The complainant replied that the tender was taken off her. She had worked on this project for a year but was not allowed to complete the work. The line manager pushed other matters, for example the handover document. It was put to the complainant that the respondent had asked her for the codes to access the computer, leading to the threat of disciplinary action.
The complainant accepted that the line manager was based full-time on the client site during the pandemic. She said that their relationship deteriorated following the call issue in December 2019. She accepted that there were still a high number of students on campus and that some had to isolate and were brought food. She said that they prepared daily reports.
In respect of the request to work from home, the complainant said that her main concern was the well-being of her husband and father-in-law, both of whom have underlying health conditions. She accepted that she had received the letters from the respondent and the client identifying her as an essential worker. She was able to use the letters to travel to and from work. It was put to the complainant that it was the client who determined that the complainant and her colleagues had to attend work during this period. It was put to the complainant that she could have been laid off by the respondent for this period. The complainant replied that she could have worked from home. It was put to the complainant that the client would not allow the respondent’s employees to work from home. The complainant replied that it was the respondent and not the client who made the decision regarding their working from home request.
The complainant outlined that she applied for the other role prior to the 14th February and she received the provisional offer in March 2020. This was then only confirmed on the 13th May as her new employer delayed the process. She confirmed that she obtained a reference, but she had not asked the line manager but asked another manager. It was put to the complainant that this other manager did not have authority to provide her with a reference.
In re-examination, the complainant said that there was no reference to what the client said in the document of the 5th May. The client had not said that respondent employees had to attend work. She outlined that all three operations coordinators had complained on the 13th March 2020.
The complainant addressed the respondent’s case on the second day of hearing. The complainant referred to a photograph showing her and her colleagues working in close proximity in the small office and without any measures in place. She said that the photograph was taken on the 17th April 2020.
In respect of the password issue, the complainant said that when she received the line manager’s email, she was advised by the client IT department not to disclose her password. This was also stated in the client’s documentation. She said that the policy permits the creation of a form in a case of a temporary absence and she directed the line manager to this solution. He did not follow up on this. The complainant said that her role was with the client and she was subject to their policies. She feared that disclosing her password could then be used against her. She had explained to the respondent that they could acquire the same level of access via the solution she had proposed, and she was not sure why this did not take place. Their persisting with her having to disclose her password was unnecessary and stressful. She commented that her work account was linked with other personal accounts.
Evidence of the contractor
The contractor is a manager of the contract cleaning firm engaged by the client. He outlined that he has known the complainant since 2016 and he managed the cleaning of the client facilities. In respect of the meeting, he observed that the complainant was upset and crying. In respect of their response to Covid-19, he outlined that the cleaning site manager continued to attend work on her own and he used other offices. In cross-examination, the contractor confirmed that he followed client procedures in respect of Covid-19.
Evidence of the colleague
The colleague outlined that she initially worked for the respondent between 2015 and 2017, returning in August 2019. She observed that the complainant was under pressure during check-ins and check-outs. She also observed that the complainant was stressed and upset in conversation with senior manager. In respect of the meeting of the 13th March 2020, the colleague said that they did not understand what the line manager would do following the meeting. They were extremely busy at this time, working from 7.30am to 6pm as Covid-19 was hitting and thousands of students were leaving.
The front of house staff made a complaint about the operations coordinators, who checked the CCTV to see that there were only six people visiting the office between 6pm and 8pm. They were also eating when they should not have been. She outlined that the line manager did not investigate this matter and they were still waiting on an apology. It upset her that the matter was not investigated. In respect of out-of-hours work, the colleague said they continued to take calls out of hours and logged them. The respondent now wished that they also work weekends.
The colleague outlined that they raised issues with Covid-19 after the first suspected case in Ireland. They obtained sanitisers and masks and asked the line manager what the plan was. He came back with five scenarios but did not allow them to distribute the document. She said that all staff should have had the document. At this stage, all staff of the client were working from home. The respondent had not provided a health and safety plan and they raised their working environment in the office. She outlined that they had been supplied with laptops and she already occasionally worked from home, for example when she had a cold.
The colleague said that they wanted to work from home, and all went on sick leave for four weeks. She was not satisfied with the respondent’s response of the 5th May 2020. She waited for the conclusion of the grievance before resigning. The line manager thanked her after she resigned. She was stressed because of the lack of communication. She saw that the precautions set out in the letter of the 5th May 2020 were not in place on their return from sick leave.
The colleague outlined that she knew the line manager from a previous role. He promised to address the issues with the front of house staff, but nothing was done.
In closing submissions, the complainant outlined that the complainant and her colleagues raised serious health and safety concerns associated with the Covid-19 pandemic as early as January or February. She submitted that the respondent did not formally meet them regarding these issues and their concerns were never addressed. This caused the complainant and her colleagues stress, and they went on work-related stress leave. In April, the complainant and her colleagues lodged a formal grievance but there was no meeting or engagement with them about this. This caused the complainant a great deal of stress.
The complainant returned to the workplace in May and measures had been put in place. She was asked to complete the handover document and her existing workload was taken from her. She had had no option but to return to the workplace and then had no option but to resign. She had five weeks of financial loss arising from the dismissal and also claimed loss of earnings for the period of sick leave. She assessed her post-dismissal financial loss as five weeks of 45-hour weeks at €16.50 per hour. She had looked for new employment, and this was delayed because of Covid-19. She resigned because her concerns were not addressed.
Summary of Respondent’s Case:
Evidence of the Managing Director
The Managing Director outlined that the respondent looked after the accommodation provided by the client university. It employed three operations coordinators and 12 front of house staff, as well as IT support. The Managing Director said that this is an out-sourced service and it works closely with the client. The respondent was responsible for all aspects of the accommodation service, for example discipline and fire safety. There were some 3,500 students, who, for many, this would be their first time living away from home.
The Managing Director outlined that the complainant commenced as a housekeeping supervisor in 2014 and he had recommended her for the coordinator role. She attended their head offices to get to know the head office staff. The Managing Director outlined that there were issues with the complainant in late 2019, as she announced that she was no longer willing to do weekend cover. The operations coordinators had generally taken calls over the weekend from front of house staff. The Managing Director said that it was able to negotiate an additional payment from the client to cover weekend work. He said that while this was not professional, they got it sorted. The Managing Director said that he visited the campus every week. He noticed that the complainant seemed unhappier. She was quiet and not herself. He felt that she did not want him to be at the office.
The Managing Director outlined that he was very involved at the outset of the Covid-19 crisis. Some 1,000 students were stuck on the campus in March, some of whom were self-isolating. The respondent had a duty of care to those students and for example, delivered food to their apartments. At this stage, the line manager had some involvement with this client and the Managing Director thought that the team now needed some help. He assigned the line manager to come in and help out.
The Managing Director said that the complainant was of the opinion that she should work from home, but the client would not have allowed this to happen. He said that her job was essential, and the client would not have allowed her to work from home. He outlined that it was the coordinators’ role to deal with the students and they were required to be on campus.
The Managing Director said that there were ongoing discussions with the client. The line manager sought to ensure that all precautions were in place and his role was mainly related to Covid-19. While the university never completely closed, the client provided laptops for this eventuality. The respondent prepared scenarios from best to worst. No staff member thankfully contracted Covid-19, either in the client or elsewhere. The client had the best record of all the universities in Ireland and this was due to the precautions taken. The client was satisfied with what the respondent was doing, especially as the respondent took a leading role in putting precautions in place. Other universities have followed their measures.
The Managing Director said that it was a regular thing for the complainant to raise her general employment issues. The client stated that it could not increase pay until the project was re-tendered. He outlined that the complainant had obtained a copy of the respondent’s contract with the client as he found it on her desk. He outlined that the complainant was their best-paid employee and had been awarded all the pay rises possible.
In cross-examination, the Managing Director said that he had spoken to the complainant before Christmas 2019 in relation to a possible pay rise. The respondent had done its best to facilitate the complainant but could not go back to the client again. He thought that this was why she was unhappy. It was put to the Managing Director that the complainant had only once mentioned a pay rise, and this was in September 2019; the Managing Director did not agree and said that this had been a continuous thing. The complainant was then the highest paid individual. The Managing Director did not know whether there were minutes of these conversations regarding the pay rises.
The Managing Director said that there had been conversations in March 2020 regarding the health and safety concerns raised by the operations coordinators. The respondent issued them with the scenario responses it had prepared. The Managing Director was asked whether a risk assessment had been carried out, for example in respect of the office; he replied that there had been an ongoing discussion of the best way to operate but the complainant was not looking for this and always wanted to work from home. The Managing Director was asked why the complainant was not allowed to work from home; he replied that as far as the client was concerned, this was not possible, and the three operations coordinators had to come into work. He said that the operations coordinators were essential like a Garda or a nurse. There were 1,000 students left on the campus.
The Managing Director was asked whether the client had directed that the operations
coordinators attend work; he replied that it was not even an option to ask the client as the role was essential and also essential that it be done from the campus. He said that the client had not issued an instruction to work from home where possible.
It was put to the Managing Director that the directive at that time was for everyone to work from home where possible; he replied that the respondent did not ask the client whether the operations coordinators could work from home as they knew it was a non-starter. He outlined that students will have problems on the campus, and they needed people on site. The respondent issued the operations coordinators with letters to say that they were essential workers.
It was put to the Managing Director that the operations coordinators had proposed to rotate so that some could work from home; he replied that it was so busy at this time, so they all needed to be there.
It was put to the Managing Director that the grievance procedure provides that a meeting should take place where a grievance is made; he was not sure whether there had been a meeting as the grievance was sent to the respondent’s representative to deal with.
Evidence of the line manager
The line manager outlined that he became full-time at the client site from March 2020. He did not accept that he was intimidating in his interactions with the complainant. The complainant had never said to him that he was intimidating. He said that they had a good relationship. He would speak with the operations coordinators to see what he could do to help. He rejected the suggestion that he did not follow the Covid-19 rules. If he did breach any procedure, he would rectify this immediately.
The line manager said that his becoming full-time was one of the immediate steps taken by the respondent following the announcement by the Taoiseach. He had been involved in the discussions with the client prior to this. The respondent had been classified as an essential service back in March 2020. They took steps, such as installing a barrier for the front of house staff. It also supplied cleaning materials and PPE, as did the client. As the pandemic was developing, the respondent gathered these materials together and briefed staff on the guidelines.
The line manager said that he had a professional working relationship with the complainant. They had worked together previously and had a good relationship then. He said that her description of their relationship was not accurate. He said that the complainant had brought in food she had baked immediately before going on leave and this was not in keeping with her description of their relationship.
The line manager said that the complainant had not liked the idea of a manager on site and there was also the continuous issue of her pay. He outlined that in one of his first meetings with the operations coordinators, the complainant said that she wanted a pay rise and wanted it now. She then took her hand into a fist, not in an aggressive measure but in a determined way. It was inappropriate for her to do this in front of the other operations coordinators. She said that she did not care about the contract with the client. He had replied that the respondent would advocate for more money.
The line manager outlined that the other staff did not say that they were unhappy with the health and safety measures taken. He said that the respondent had been reasonable and did its best to deal with their concerns.
In respect of the password issue, the line manager outlined that when the operations coordinators took sick leave, there was important information on their computers, but he and another manager did not have their passwords. There were 1,000 students on campus, and they needed information on the students and the operations. He cited the example of an engineer calling to repair communications equipment, but they had no information about the call-out. Not having the passwords made it both difficult and disheartening as there was no cooperation from the operations coordinators. It was the passwords to the desktops, the email accounts and the IT systems.
The line manager outlined that a senior person in the client emailed the Managing Director, granting permission to get passwords from the three operations coordinators to all the systems. When the request was made of the complainant, she replied to say that while she understood the urgency of the request, she could not comply as she not ‘authorised’ by GDPR. The line manager said that his request had been a legitimate authorised request. He only obtained the password to one computer but not to the email accounts.
The line manager said that both the client and the respondent had provided the complainant and the other operations coordinators with letters stating that they were essential workers. This was distributed to them on the 28th March. The provision of student accommodation was identified as an essential service.
The line manager outlined that at the briefing meeting, he had gone through the supports being provided for a safe workplace. The complainant, however, had not mentioned leaving. There were then 1,000 students on campus, spread across the villages. Many who remained were stressed.
The line manager said that it would not have been possible for the complainant to have worked from home as there was a requirement to be on site. He said that this was an essential service, and there were many students spread over the eight villages. They continued to be on site as an essential service. There could have been a push for accommodation at any time.
The line manager outlined that the scenarios were devised by the respondent and the client. They had remained at level 2, although had the first case of Covid-19 recently. The scenarios were for the protection of the students and the team and to ensure continuity of service. The line manager referred to the letter from the client confirming that the complainant was an essential worker and could travel to work. He also referred to the detailed residences action plan.
The line manager said that the contract of employment for the operations coordinator role provided for weekend working. He referred to page 2, which stated ‘the company reserves the right to require to work over the 7 days and the days may vary’. He and another manager had provided weekend cover during March and in April and asked the operations coordinators to be rostered over weekends. The complainant was asked to work one Sunday but to have the following two days off. The weekend work was necessary because of the high workload. The line manager said that this was a reasonable suggestion but there was a lot of push back from the complainant. She refused to recognise the request for her to work at the weekends. The managers provided cover when operations coordinators needed weekends off, for example when one needed the weekend off for religious reasons. They also provided childcare supports. He outlined the respondent was not demanding that operations coordinators work seven days per week, but that they provided support over the full week. He offered to review the 7-day roster and withdraw it if there was no demand.
The line manager outlined that 90% of the staff have remained with the respondent through the pandemic. He said that the operation is open and running and there are now 2,000 students on site. The line manager did not accept that what the Managing Director said had been inappropriate. There had been issues between the front of house team and the operations coordinators. He described the meeting as a fair and reasonable meeting with management.
Commenting on the photograph submitted by the complainant, the line manager confirmed that this was the office in which the complainant and her colleagues worked. He asked to submit a photograph showing the office with the precautionary measures in place.
In cross-examination, it was put to the line manager that the operations coordinators had said they were not happy with the respondent’s response to the front of house issue. He replied that the front of house team had not accurately reflected what had happened, but there was no need to reinvestigate the matter. It was put to the line manager that the complainant did not accept that she had clenched her fist; he replied that this occurred in November 2019.
In respect of the Covid-19 related measures, the line manager said that no other staff member had raised issues regarding the precautions taken or said that they were not happy. They suggested ideas for the respondent to implement. It was put to the line manager that the three operations coordinators had gone on work-related stress leave following the lack of procedures in March; the line manager did not accept that this arose because of any lack of procedures or processes. At this time, he was on site every day with other members of management to support the team. Asked to list the measures then put in place, the line manager said that the draft contingency plan was done on the 5th March and he briefed the operations coordinators on the 12th March. The measures described in the submission were put in place straight away and additional precautions were also introduced. This included installing a barrier in the main reception and supplying cleaning materials and PPE.
The line manager was asked what was done to address the specific concerns raised by the operations coordinators regarding the office; he replied that they moved the desks to different spaces in the office for their return from sick leave. The operations coordinators had not previously mentioned using the other offices and he would have supported this suggestion.
The line manager outlined that there was a formal meeting with the complainant on her return in May. She was asked to draft the manual as none was available on the systems, to be used for example where an employee was sick. Arising from the password issue, the respondent created a single email system with their combined emails. The complainant was asked to pull out the important emails from her account.
The line manager was asked whether he had met the client about the operations coordinators working from home; he replied that the operations coordinators had asked the respondent to speak with the client about their working from home. He said that the Taoiseach had then made the announcement and they were designated as an essential service. He said that it was obvious from the role that they needed to be on site as there were students stranded on the campus.
The line manager was asked about the suggestion that they rotate their presence in the office; he replied that they were not happy with the staggered hours and the weekend roster. He said that at this time, they chose to travel to work together.
The respondent outlined there were communications on behalf of the operation coordinators regarding the Sunday working, the call issue and their sick leave. They also raised working from home. Via the representative, the respondent gave a detailed reply on the 4th May. The reply refers to the contract on the issue of weekend working. Other issues were covered by the contract or subject to the negotiation with the client. The reply stated that working from home was a decision to be made per the requirements of the workplace and following discussion with the client. There had been no discussion prior to the pandemic of working from home. The respondent stated that staff could absent themselves if they would not attend work and seek a state benefit.
The respondent addressed all of the issues raised on behalf of the operation coordinators. The cover letter referred to possible disciplinary action arising from the password issue and the failure to follow a management instruction. The letter also referred to a possible reduction of working hours.
There was no further response from the union and the ball was very much in their court. The respondent commented that the complainant’s submission does not mention this interaction. The respondent had taken it that the lack of further reply meant that the operations coordinators were satisfied with the points raised.
In closing comments, the respondent outlined that the complainant was difficult and obstructive regarding the email issue. She refused to comply with the line manager’s instruction and ought to have complied with this. The respondent outlined that an award for sick pay could not be made via the Unfair Dismissals Act and this could only be done via the Payment of Wages Act. In respect of the complainant’s financial loss after she resigned, the respondent submitted that she now earned more. She incurred no financial loss as her earnings over the whole 104 weeks exceeded what she would have earned in this role. It submitted that the complainant left in the knowledge of moving to a higher paying job. The respondent supplied the complainant with a very positive reference. Her reasons to work from home were personal to her and her family members. They were her personal circumstances and nothing to do with the employer. It submitted that the evidence from the cleaning contractor was that they had to follow the client protocol.
Findings and Conclusions:
The complainant resigned on the 12th May 2020. This was preceded by several significant exchanges between the parties.
In her email of the 17th April 2020, the complainant states ‘Every time I voiced out my concerns and the pressure I’m under it was brushed under the carpet and never to be mentioned after. I feel disheartened that I never received answers to my concerns and queries raised with you in the last weeks and I feel that everything that was discussed with you was never brought to your supervisor’s attention for further evaluation. I feel like I was undermined unappreciated and used. My needs and concerns were never taken into consideration. You have no idea how many times I have left work in tears, how many times I got in the car and drove home on automatic pilot, how many times I had to put a brave face in front of our staff members and how bad this has affected my personal life. As expressed previously in our conversations most of our work if not all can be done from home and there was no need for 3 OPS to be in the office on a daily basis. Arrangements to work from home were made available to all OPS by [the client] but even with all these arrangements [the respondent] never approved us working from home. (rental laptops provided) On the first hand we cannot apply social distancing as outlined by the HSE as our offices are located close to each other and on the second hand we are coming from different environments and have to spend 8 to 9 hours in close proximity. By taking this action, [the respondent] has increased the infection risk with COVID-19 for all 3 [operations coordinators] and for the front of house staff which are in breach as well of the social distancing as their desk is one beside the other. In the event one of us gets sick I will be putting at risk my husband [who] is an asthmatic patient (documentation can be provided on request). For people with underlying health conditions this virus can be fatal.
I would also like to bring to your attention that since the beginning of this outbreak we haven’t received any document in relation to Health and Safety Guidelines that [the respondent] has implemented to comply with the new regulations, leaving us feeling unsafe and try to make the best decision when having to deal with this situation.’
In the formal grievance of the 30th April 2020, the complainant and two colleagues stated ‘our health and safety concerns in relation to Covid19 must be addressed immediately. Our reasonable request to work in rotation from home during the pandemic should be considered given that all three of us have family members in the ‘at risk’ category.’ They further stated ‘Arrangements to work from home were made available to all [client] staff and to the coordinators team but we were refused by [the respondent]. All the coordinators had to come to work on a daily basis, which did not give room for social distancing to be applied as our office does not allow this. [in bold font] All three of us have family members in the ‘at risk’ category and we are concerned about the health of our family members as well as our own wellbeing. These concerns were brought to the [respondent’s] attention ([the line manager’] numerous times at the start and during the Covid-19 outbreak but nothing was done about it and zero care and consideration was given back. We are proposing that in rotation 2 coordinators to be allowed to work from home and 1 coordinator to work office shift in order to alleviate some of the stress we are experiencing at present. Most of our work can be completed from home but if there are issues that require our presence there will be 1 coordinator in the office to address them. This measure will minimise the infection risk and will help us keep our family and ourselves protected.’
The grievance response of the 4th May 2020 addressed the issues raised by the complainant and her colleagues, for example working hours and on-call pay. In respect of working from home, the response stated ‘[the respondent] fully appreciate the domestic situation that each of you mentions. However, the decision on whether any particular role can be performed remotely is a matter for [the respondent], after appropriate discussions with [the client]. The decision needs to be based on the specific needs of the workplace. Whilst [the respondent] understands that a person may wish to work from home, that is not of itself a basis for changing the role to home working. Prior to Covid-19 there was never a suggestion that the roles could be performed remotely, and the same situation pertains in a post-Covid situation. Each person may absent themselves from work and check if they are entitled to a state benefit. The position will be kept under review, but at present the [respondent] position is that the three roles are not suitable for remote working.’
The respondent also set out Covid-19 workplace precautions, including dispatching two senior managers to the site as well as briefings, instructions, PPE and changing the physical layout of the office. This included the installation of screens and warning tape and moving desks. There are 27 bulleted actions that were then said to be completed or would be followed up on. On the 7th May 2020, the complainant replied to say that 13 of the precautions stated as completed had not been in place on the 17th April.
In the emailed resignation of the 12th May 2020, the complainant referred to the respondent’s treatment of her as ‘stressful and pushy’. She said that her ‘anxiety and stress levels have once again increased [on returning to work] and on this occasion have caused me to experience panic attacks which are having a great impact on my overall wellbeing.’ She stated ‘With this email communication I am handing in my notice, as I am not able to manage the levels of pressure imposed by [the respondent] management and the impact this is having on my health wellbeing. [The respondent’s] approach to the whole situation has been a real disappointment and the lack of care for their employees has left me feeling disheartened and insecure.’
Safety, health and welfare at work
The Safety, Health and Welfare at Work Act sets out the health and safety requirements of the workplace. Section 8 provides the general duty to ensure ‘so far as is reasonably practicable, the safety, health and welfare at work of his or her employees.’ Section 8(2) provides particulars, including the duty at subsection (e) to provide ‘systems of work that are planned, organised, performed, maintained and revised as appropriate so as to be, so far as is reasonably practicable, safe and without risk to health’.
Section 8(2)(i) refers to the general principles of prevention in Schedule 3 and provides that ‘where risks cannot be eliminated or adequately controlled or in such circumstances as may be prescribed, providing and maintaining such suitable protective clothing and equipment as is necessary to ensure, so far as is reasonably practicable, the safety, health and welfare at work of his or her employees’.
Schedule 3 of the Act sets out general principles of prevention, including ‘1. The avoidance of risk 2. The evaluation of unavoidable risks … 4. The adaption of work to the individual … 5. The adaption of the place of work to technical progress … 7. The giving of priority to collective measures over individual protective measures.’ These principles are engrained in how risks and hazards are addressed, for example the pyramid-structure hierarchy of control often quoted in health and safety documents. The most effective way to address a risk is to eliminate it, followed by substitution, then by engineering or administrative controls. Personal protective equipment is the last resort and the least effective measure.
Section 13 imposes duties on the employee, including to comply with statutory provisions and to take reasonable care to protect their safety, as well as to cooperate with the employer. Section 19 requires the employer to prepare a written risk assessment of hazards, including of any unusual risks to a particular employee.
The health and safety duties imposed on employer and employee are an implied term in every contract of employment. Through the contract of employment, employers and employees are bound to comply with the statutory regime and relevant health and safety policies.
Constructive dismissal – legal tests
It is clear from the case law, most notably, Western Excavating (ECC) Ltd v Sharp  IRLR 27 and Conway v Ulster Bank UD474/1981, that there are two distinct tests for constructive dismissal. They are known as the ‘contract’ and the ‘reasonableness’ tests. They have in common that the onus falls on the employee to discharge the burden of proof. They are, however, separate tests.
In a claim of constructive dismissal, it falls on the adjudication officer to determine if the employee has met either test. In practice, however, parties may hone their submissions on one or other of the tests (as occurred in McCormack v Dunnes Stores UD1421/2008). While an employee may be able to show that they satisfy both tests, they are not required to meet both tests and there is no fused test, combining both repudiation and reasonableness.
Constructive dismissal - Contract test
Western Excavating (ECC) Ltd v Sharp summarised the ‘contract test’ as: “If the employer is 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 other performance.” It is important to note that the contract test requires repudiation of contract and not merely breach of contract.
Constructive dismissal – reasonableness test
In Western Excavating (ECC) Ltd v Sharp, the ‘reasonableness test’ provides that the conduct of the employer should be assessed and whether it “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” The reasonableness test requires the complainant to have “substantially utilised the grievance procedure to attempt to remedy her complaints” [Conway v Ulster Bank UD474/1981]. The reasonableness test requires an assessment of the employer’s conduct and the extent to which the employee sought to utilise procedures and raise her concerns.
Application of the legal tests to the facts of this case
This case does not relate to a general right to work from home or to work remotely. It relates to the circumstances the Covid-19 pandemic. The question is whether the complainant was constructively dismissed, either following a repudiation of her contract of employment or if it was reasonable for her to resign. There were wider industrial relations issues (for example working time and pay), but I have only addressed these in so far as necessary to decide this claim of unfair dismissal.
As an infectious disease, Covid-19 constitutes a biological hazard. In this context and at the centre of this case are the duties of both employer and employee arising from the Safety, Health and Welfare at Work Act and the underpinning health and safety principles. Compliance with these statutory duties is an implied term of the complainant’s contract of employment and significant non-compliance could represent repudiation of that contract or mean that it was reasonable for her to resign.
The complainant’s contract of employment set out her duties. This document and the parties’ evidence indicated that this was a managerial role, with a heavy amount of project management work. The contract refers to the complainant as leading and managing the daily operations team. It refers to project management and the relationship with outsourced facilities vendors. Arising from this contractual term, I note the evidence relating to the large furniture tender which the complainant was about to complete on her return from sick leave. I note the evidence of the close working relationship between the operations coordinators and the cleaning contractor and indeed, with the line manager in his previous role.
The complainant’s contract outlined that she prepared schedules and budgets. She accessed eight IT systems and was responsible for website content. Included in the role was leading, motivating and encouraging excellent customer service of a large team. There were specific duties related to the summer business, but the 2020 season was cancelled because of Covid-19.
I note that the complainant worked with the two other operations coordinators. They were peers and none was more senior. They did equivalent roles. This was very much the case in respect of their staff management functions. I note the issue of the complaint from the front of house staff involved a complaint from this group of staff against all three operations coordinators. The operations coordinators were addressed as one collective by the Managing Director. This is significant as staff management is the function that most required their presence in the workplace but one where the operations coordinators were interchangeable. It suggests that all three were not always required on site at the same time as the operations coordinator present in the workplace could discharge the staff management functions.
It is clear from the evidence that access to email and IT systems was an important part of the role. This led to the sharp exchanges between the line manager and the complainant over access to her @[client].ie email account. The complainant said she declined to allow access as it would breach the client IT policy, although suggested workarounds. The respondent said it was entitled to access the email account and threatened disciplinary action. It is not necessary for me to decide this difference of view, but this highlights the importance of the complainant accessing email, IT systems and a computer as part of her role. This was, of course, something the complainant could have readily done remotely, in particular with the laptop supplied by the client.
An important element of this case is the attitude of the client to the operations coordinators and other staff of outsourced providers working from home during the Covid-19 pandemic. There is nothing in writing from the client to indicate what their attitude was. It was suggested in cross-examination of the complainant that the client had refused to allow respondent staff to work from home, but the respondent’s direct evidence was that the client’s position was clear and that there was no point in requesting that staff be allowed to work from home. I note that the client required all its staff to work from home from March 2020, including a staff member who shared the office with the operations coordinators. I also note that the client provided laptops to the operations coordinators in March 2020. This suggests that the client intended for them to be used immediately to facilitate their working from home, although I note the respondent’s evidence that this was for the eventuality of the campus closing entirely (which did not happen). Either way, the complainant and her colleagues had the IT equipment to hand to work, at least, part of the role remotely.
I note the workplace and the nature of the role. The complainant and her colleagues dealt with the difficult task of managing thousands of students who vacated their accommodation at the start of the lockdown. This was supplemented by the attendance of senior managers. The evidence indicates that some students remained on campus. There remained a need for some on-site presence, although it was maybe less busy with fewer students and no summer season. The role is certainly an essential service, so that the operations coordinators could attend work even during the strictest periods of lockdown. I note that the contract cleaner changed how they provided their service. Only one person occupied their on-site office and the cleaning manager (who gave evidence) no longer attended this office.
Having considered the evidence and documentation, I find that the complainant was entitled to consider herself to have been constructively dismissed for the following reasons. First, I note the eminently sensible suggestion proposed by the complainant and her colleagues at the outset of the pandemic. This was for one operations coordinator to attend the office and the other two to work remotely. They would rotate their presence at the office. In line with the above health and safety principles, this would eliminate the risk of transmission between them, for example in the office or while commuting to the campus and reduced the risk of transmission between each of them and others working on campus. It is striking that the respondent did not, at least, trial this suggestion. This is especially the case as so much of the operations coordinator role was project management or carried out via a computer. I note above that staff management was the part of the role that most required them to be on campus, but this was a function that was interchangeable between them. I note that there would have been a constant presence of an operations coordinator on site to deal with the now reduced number of students, albeit that the student’s first point of contact would be a member of the front of house team and not the operations coordinator herself.
Second, there was no objection from the client to this proposal and the client facilitated this by providing laptops. In the absence of any objection from the client, I find that the respondent did not provide an adequate explanation as to why it did not accede to the proposal. The on-site essential nature of the role was covered by the rotating presence of operations coordinators and the significant online work could have been progressed remotely.
Third, I note that the respondent proposed physical or PPE related mitigation measures, for example using now-empty desks elsewhere in the building. This, however, effectively inverts the pyramid-structure hierarchy of control, where elimination of risk is the first order of action. Physical mitigation or PPE are not alternatives to elimination of risk, as after all, it would only take one failure to comply or a mechanical failure for the disease to spread. I note from the photographs that this was a confined office space, even with the mitigation. I find that the respondent did not adequately consider the elimination of risk that would have been achieved through the proposal made by the operations coordinators. That proposal would have eliminated the risk of transmission between the three operations coordinators and reduced their risk of contracting or of transmitting the disease to others.
I find that the requirement that the complainant attend the workplace without such adequate consideration of the elimination of risk amounts to repudiation of contract. This arises as providing a safe place of work is a fundamental term of the contract of employment. The respondent did not comply with the statutory framework by first seeking to eliminate risk, causing the complainant to attend work in greater danger. In this case, the risk could have been readily eliminated or reduced through ‘reasonably practicable’ steps, as suggested by the complainant. Mitigation is not equivalent to elimination.
For completeness, I find that the complainant also met the second ‘reasonableness’ limb of the test for constructive dismissal. She articulated a clear grievance and suggested how the work could be done in the safest way possible. This was not adequately considered by the respondent, leaving her with no real option but to resign.
In respect of redress, I note that the complainant had sought alternative employment in early 2020 and was successful. This hire was delayed by the pandemic and she began the new role five weeks after her resignation. She is paid more in her new role. An employee who has been unfairly dismissed is entitled to redress that is just and equitable, including financial loss arising from the dismissal. The complainant was not in employment for five weeks after her dismissal and the resultant loss of income is such financial loss. The complainant is entitled to compensation equivalent to five weeks of pay, consisting of a 45-hour week and an hourly rate of remuneration of €16.50. This amounts to €3,712.50.
Loss arising from a dismissal does not include loss of income prior to a dismissal. The complainant is, therefore, not entitled to compensation for the loss of income incurred while she was on certified sick leave. There is no claim pursuant to the Payment of Wages Act and I do not see any contractual entitlement to paid sick leave in this employment.
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.
I decide that the complainant was unfairly dismissed by the respondent and the respondent shall pay to the complainant redress of €3,712.50 as compensation for the unfair dismissal.
Dated: 7th January 2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Unfair Dismissals Act / constructive dismissal
Health and Safety / Covid-19 pandemic
Repudiation of contract / reasonableness