FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : NCBI (NATIONAL COUNCIL FOR THE BLIND OF IRELAND) (REPRESENTED BY ADARE HR MANAGEMENT) - AND - MS MARY CAWLEY DIVISION :
SUBJECT: 1.An appeal of an Adjudication Officer's Decision No(s)ADJ-00015089 CA-00019623-001 Background The Complainant commenced employment with the Respondent in September 2004 as a Community Resource Worker. It is the Complainant’s complaint that she was left with no choice but to resign, after enduring bullying and harassment and unreasonable and excessive workloads. It is the Respondent’s case that they investigated the Complainant’s allegations which were not upheld. The Complainant did not have an excessive workload and it was her decision to resign. The Complainant was on sick leave from the 26thOctober 2017 until the 27thMarch 2018 when she resigned her position. Summary of Complainant’s case It is the Complainant’s submission that she lodged a Bullying and Harassment complaint with the assistance of her Union against another member of staff in 2015. The Complainant appealed the outcome as she was unhappy with same. As this issue was not resolved to her satisfaction the Complainant believed she had no option but to apply to work in a different location. In January 2016 she responded to an internal advertisement for a Community Resource Worker in Waterford. Shortly after taking up that role the Complainant was asked to cover for a colleague who was going on maternity leave. Later that year she was asked to cover for another colleague who was on leave for a month. It is the Complainant’s submission that in January 2017 she ceased covering the maternity leave as the person had returned to work. However, another worker announced he was leaving the area and the Complainant was told she would have to cover all of the County of Waterford. It is the Complainant’s submission that she advised management that she could not do that as it would involve too much driving. On the 26thJanuary 2017 she met with her manager Ms McCarthy who presented her with details of caseloads of other workers that seem to indicate that her workload was not out of kilter with other members of staff , but it is her belief those figures were inaccurate. On the 6thMarch 2017 the Respondent wrote to the Complainant and advised that they were invoking the disciplinary procedure because she had failed to take on the additional work. The charge against her was failure to obey a reasonable instruction i.e. take on the additional work. The Complainant attended a disciplinary hearing with her Union Official and the outcome of same was that she was issued with a verbal warning. The Complainant appealed that decision but was unsuccessful. The Complainant continued to highlight the fact that covering the whole of the County of Waterford was not manageable. The Complainant had a number of health issues which she brought to the Respondent’s attention. The Complainant attended with the Respondent’s Occupational Health Specialist on the 12thOctober 2017. The Respondent then instructed the Complainant to go on certified sick leave. The Complainant returned to work on 23rdOctober 2017. On the 26thOctober 2017 the Complainant was certified unfit for work by her GP. On the 18thJanuary 2018 she again attended the Respondent’s Occupational Health Specialist who certified her fit to resume work in a week. It is the Complainants submission that on the 19thJanuary 2018 she attended her own GP who certified her as unfit for work. The Respondent then wrote to her on the 8thFebruary 2018 enclosing a copy of the Occupational Health Report and looking to meet with her on the 28thFebruary 2018 to discuss same. It was the Complainant’s submission that her solicitor had responded to that correspondence indicating that they would both attend the meeting on the 28thof February. The Complainant on the 23rdFebruary submitted a further medical certificate from her GP. On the 14thMarch the Complainant was asked to attend a further independent medical assessment. The Complainant’s solicitor responded on the 20thMarch advising that she would not be attending and requesting that she be provided with her P45. The Complainant resigned from her position on the 27thMarch 2018. The Complainant obtained alternative employment on the 29thMay 2018. Summary of Respondent’s case The Respondent submits that dismissal is in dispute. The Respondent investigated all the complainants the Complainant raised. However, she was not happy with the outcome. The Respondent sought to engage with the Complainant around her workload, but the Complainant refused to take on the duties even thought she had capacity once the other worker had returned from maternity leave . The Complainant was represented by her Union Official in respect of the engagements around her workload. The Complainant went out sick on the 26thOctober 2017. The Respondent arranged for the Complainant to be seen by their Occupation Health Specialist on the 19thDecember 2017 in Dublin. The Complainant had an issue with travelling to Dublin, so the appointment was re-arranged for 18thJanuary 2018 in Waterford. The report from the Occupation Health Specialist stated that the Complainant was fit for work and was fit to attend a meeting to discuss her work- related issues. The Respondent wrote to the Complainant inviting her to attend a meeting advising that she could be accompanied by her Union Official , work colleague or a family member. The Complainant responded advising that she wanted to bring her solicitor. The Respondent advised that in line with their procedures, as it was an internal matter that it was not appropriate to have a solicitor in attendance. Further correspondence was exchanged with the Complainant, however, by email of the 23rdof February the Complainant advised she would not be attending the meeting and attached a hand- written note from her GP stating that she was not medically in a position to return to work. The meeting scheduled for the 28thFebruary 2018 did not take place. On the 14thMarch 2018 the Respondent wrote to the Complainant advising that as they now had conflicting medical opinions in respect of her fitness to return to work, they required her to attend an independent Occupational Health Specialist. On the 20thMarch 2018 the Respondent received a letter from the Complainant’s solicitor advising that she would not be attending the Occupational Health Specialist and that she intended the last certificate from her GP to indicate her termination of her employment the letter went on to say that the complainant would be pursuing a constructive dismissal claim. The Respondent wrote to the Complainant on the 26thMarch 2018 asking that she reconsider her decision, and that she attend the appointment with the independent medical assessor. On the 27thMarch the Complainant responded confirming that she had tendered her resignation and requesting her P45 be issued. On the 28thMarch 2018 the Respondent wrote to the Complainant advising that they had not actioned same and asking her to confirm that she had given consideration to her decision to resign. On the 29thMarch 2018 the Complainant confirmed her resignation.it is the Respondent’s submission that there was no dismissal the Complainant made an informed decision to resign her position. The applicable law Section 1 of the Act defines constructive dismissal in the following manner “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,” Section 6(1) of the Act states“ Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.
Findings of the Court. The net issue for consideration is whether the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Act. In reaching its conclusion on that question the Court has carefully evaluated the written submission made by the parties . InBeatty v Bayside SupermarketsUD142/1987, in referring to the need to utilise grievance procedures, Employment Appeals Tribunal held:- On the facts of this case the Court cannot see how it could realistically be said that the Respondent was guilty of conduct in relation to the Complainant which was such as to entitle her to terminate her employment.
NOTE Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary. |