ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032890
Parties:
| Complainant | Respondent |
Parties | Sarah Hegarty | Boots Retail (Ireland) Limited |
Representatives | Pat Mullins , O ’Flynn’s Exhams Solicitors | James Cleary , IBEC Executive |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00043403-001 | 06/04/2021 |
Date of Adjudication Hearing: 05/12/2022
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance Section 39 of the Redundancy Payments Acts 1967 - 2014 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.
Background:
The Complainant lodged a complaint of constructive dismissal at the WRC on 6 April 2021. the Complainant had worked as a Customer Assistant in a Pharmacy and was represented by her Solicitor, Pat Mullins. The Respondent represented by IBEC came on notice in May 2021. Both Parties filed written submissions prior to hearing. The case first came for Remote hearing on 20 July 2021, but was adjourned on the Complainants’ Solicitors contention of an anticipated a serious conflict in evidence, which would require administration of the oath. I adjourned the hearing to permit the legislative changes following the Supreme Court case of Zalewski v an Adjudication Officer and WRC, IESC 24, in Workplace Relations (Miscellaneous Provisions) Act 2021. The case came for in person hearing, resumed from the remote platform on 20 July 2021 on 5 December 2022, where both parties were again represented. The Complainants had submitted a Statement of loss at my request. The Complainant chose to take the oath to accompany her evidence. The Respondent witness Ms. Maher also took the oath and Ms. Sheehan chose to take the affirmation.
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Summary of Complainant’s Case:
The Complainant commenced work as a part time customer assistant at the Respondent pharmacy on 8 April 2016 and left the employment on 19 November 2021. She was paid €14, 180.40 gross in respect of a 22.5hr week. The Complainant secured a permanent contract of employment in March 2017. The Complainant elected for the option of compensation in the event that her claim for constructive dismissal succeeded and she declared that she had found new work on 23 November 2020. The circumstances of this case arose during the first quarter of the National Pandemic of covid 19. The Complainants Solicitor outlined that without warning on 16 July 2020, the complainant had been told by her manager to “Wear a face mask while at work”. As this development had not been underpinned by a noted policy change or written instruction, the Complainant became distressed and sought direction. The Respondent Manager explained that if the complainant was not comfortable wearing a mask, she should take sick leave. The Complainant felt isolated. The complainant proceeded on medically certified sick leave the following Monday, July 20,2020, until the time she left the employment on 19 November 2020. During this time, she sought a clarification in the instruction surrounding mask wearing at work, but none was forthcoming in the global sense outside of a cover letter from the Store Manager dated 31 July 2020. The Complainants Solicitor outlined that the complainant had not been invited to invoke the grievance procedure or facilitated in not wearing a mask. He submitted that mandatory wearing of face masks did not come into legislative effect until 11 August 2020 through the medium of SI 296. The Complainant is claiming Constructive Dismissal in the face of the Respondents unreasonable behaviour towards her. He submitted that more could have been done to save the complainants employment by the respondent. The Complainant commenced seeking new work from mid-September onwards but did not demonstrate that mitigation. She found new work on 23 November 2020 with a marked differential in wages and a “no pay clause “during the summer months. Her stated financial loss stood at €6,500 -€7,800 to August 2021. The Complainants Solicitor argued that the actions of the Respondent fell short of best practice in seeking to resolve the complainant issue surrounding the imposition of the rule around wearing of face masks in the workplace from July 2020. The Complainant, he said was left with no option outside resignation. He drew the distinction between the work imposition of masks and the statutory imposition in SI296/ 2020 from August 2020. He drew from the Labour Court case of Ryan, Cannon, and Kirk Accounting services ltd and Violeta Kneite UDD 1910, where reasonable effort standard was highlighted. Mr Mullins said that the complainant had not been invited to lodge a grievance and the Respondents failure to offer the complainant a policy surrounding the wearing of masks at work went to the root of the case and could not be deflected from by the mention of “a service of wellbeing / occupational health “The Respondent, he said had simply not engaged with the complainant towards resolution. He applied the facts in Kaydee Cosmetics v Blake, at the Labour Court He exhibited contracts of employment and inter party correspondence. Evidence of the Complainant: The Complainant worked in the Cosmetics end of the business and not the pharmacy end. She recalled 16 July 2020, when she was told “you have to put on a mask “The Complainant asked for clarification but was deflected by Ms A, the Store Manager to “Did you hear RTE? “The Complainant requested a private conversation and understood Ms A understand and empathised with her. The Complainant was unsure how to proceed and asked if there was an explanatory Memo from the Regional Manager.? She sought written clarification for the change. Ms A told her that nothing had issued regionally or via human resources. Ms A confirmed that she understood that the complainant had an issue with face masks. she told her of notification on notice boards of the changes. The Complainant recalled that Ms A asked her if she had a Dr? she confirmed that she had a scheduled appt and requested the duration of paid sick leave. The Complainant told her that she was not sick. She felt humiliated. Ms A told her that she would not be able to resume floor duty without a mask. The complainant told Ms A that wearing masks caused her to be ill. Ms A reinforced the mandatory nature of mask wearing and said that she would be in contact with her over the weekend. This fact was disputed in Ms as evidence. She said that she carried an ongoing dissatisfaction on the lack of clear instruction on what to do with customers not found to be essential customers. she said that she was fed up having to stand at the door on these tasks. The next day, the complainant said she discussed her concerns with her Dr and was offered support. The Complainant delivered her sick note in the company of a colleague and told Ms A that she wasn’t sick and had been refused opportunity to work. There was no official Memo for the workforce. She denied being directed to the staff noticeboard. The Complainant wondered if she had a job and was assured that the respondent would respond to her. she confirmed receipt of the July 31 letter to which she was instructed by her legal team not to respond. She did not contact occupational health. Her efforts to secure a Policy on mask wearing was unsuccessful.
The Complainant said she had not raised a grievance and had not been faced with any options of redeployment. The Complainant confirmed that some of the workforce was unionised. The Complainant said she drifted after July 2020, she was frustrated, exhausted and at rock bottom with the company. she contended that her employment relationship had gone, and she secured a new job. When requested to address the lack of a started reason in her letter of resignation she stated: “I wanted to be clear and give facts “ During cross examination, the complainant confirmed that she had enjoyed work and was sad to leave a place, where she had made friends. She observed a lag from early February 2020 in terms of instructions on policing the door of the shop. The complainant confirmed that she had plenty room to achieve social distancing behind the screen. She stated that there was a conflict in how staff and customers were expected to manage the threat of covid at the shop. The Complainant confirmed that she had sought clarity but had not received it. She said she was aware of the HR Dept. As she had not received a response from the Respondent, she sought legal advice. She denied any animus towards Ms A but contended that from July 16 that she had not been permitted back on the floor. This followed a precarious time from February 2020. The Complainant told Mr Cleary that she did not wear a face mask in her everyday life. The complainant confirmed that she was aware of the risk of covid and accepted that she had participated in the work-based processes around covid. When probed by Mr Cleary on whether a policy on the covid 19 at the level it was being discussed was needed? the complainant did not answer. She then said that she had asked for guidance. In closing, Mr Mullins called on the application of Berber v Dunnes Stores at the Supreme Court and concluded that the Respondents behaviour in this case was sufficient to argue that the contract had been rescinded and breached fundamentally. He submitted that his client was told to leave the work force and could not return. He argued that the ~Respondent had not acted reasonably. He submitted that the complainant could not be expected to put up with her isolation (Allen v Sunday Independent) The Respondent denied the Complainant a policy and she had no idea, what to do after that. The Protracted period of sick leave should have put the respondent on inquiry that all wasn’t well, but no communication occurred. Her resignation was her only option available.
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Summary of Respondent’s Case:
The Respondent operates a large group of Pharmacies. The period now referred to as the Covid 19 Pandemic proved a particularly challenging period for Irish Residents and Businesses. The Company sought to optimise the protection of staff, customers, and patients. Adherence to HSE and Government advice was a key objective for the business. It was common case that the complainant commenced work as a customer assistant on 8 April 2016, becoming permanent in March 2017. She earned €13.77 per hour. The Respondent has denied that the complainant was constructively dismissed. The Respondent, in compiling their outline prehearing submission, reflected on the measures undertaken at the business to protect staff and customers. 1 Infection Control Measures / Completion of return-to-work protocol / risk assessments 2 covid 19 self-declarations monthly 3 Covid induction training 4 Lead Worker Representative in each store “representing any colleague concerns with management and reviewing measures taken in the store each week “ Mr Cleary outlined that on July 15, 2020, the Government led out on wearing of face coverings for staff and customers in retail setting. “The Government agreed today that face coverings should be worn by all customers in shops and shopping centres across the country. Retail staff will also be required to wear a face covering unless there is a partition between them and members of the public or where there is a distance of 2 metres between them and members of the public “ The Respondent acted promptly on foot of this advice and introduced mandatory mask wearing when working. There were 25 staff allocated to work in the store daily. The Complainant took issue with this requirement and sought a Company Policy. The Respondent sought to explain the rationale for change and advised the complainant to discuss with her own Doctor on 17 July 2020. The Respondent denied directing g the complainant onto sick leave and planned on following up the issue on the complainants return to work on July 20, 2020. The Complainant proceeded on certified sick leave from 16 July 2020. She requested a company policy document regarding face masks at work. The Respondent sought to explain their position on face masks at work by a letter sent via email on 31 July 2020 The Complainant extended her certified sick leave and refused to engage with the Store Manager, Ms Sheahan when she suggested that she attend a telephone appointment with an Occupational Health Provider. On 25 August 2020, the Complainant submitted a data access request for her Personnel file. The Complainant continued to submit medical certificates until her resignation on 19 November 2020. On that day, the Complainant remarked on the positives of receiving a bonus payment and handed a letter of resignation to Ms Sheahan “Dear Maria, with this letter, I wish to inform you that I will be resigning from my position with Boots, with immediate effect. Yours sincerely, Sarah Hegarty
The Respondent accepted the resignation on that date and finalised details of the termination of employment. Ms Sheahan made herself available for queries or discissions, none followed. It was the Respondent case that the Complainant could not succeed on either the Contract Test or Reasonable Test in this case. The Respondent denied any contractual violation and relied on the application of Conway v Ulster Bank UD 474/1981 The Respondent maintained that the contract had not been subjected to a radically different change that what it was before. The Respondent has contended that it acted fairly and reasonably towards the Complainant “at all times “ In relying on Mc Cormack v Dunnes Stores at the EAT, UD 1421/2008, the Respondent contended that they operated on a statutory duty to ensure safety, health, and welfare of its employees at work. They responded to the global pandemic in a proportionate manner, in embracing the public health guidance in July 2020. The Respondent acknowledged that SI 296/2020 did not come into effect until August 2020. The Respondent sought to “apply a policy position “as sought by the Trade Union at the time. The Respondent submitted that the Store Manager had endeavoured to explain the clinical rationale for wearing of face masks at work to the complainant. When faced with the Complainant stated reluctance to wear a face mask at work and in the aftermath of a local engagement, the respondent offered to refer the complainant for Occupational health input, but she refused. The Respondent wanted to be heard specifically on their submission that the complainants’ medical certificates did not stipulate that her absence was as a direct consequence of being requested to wear a face mask at work. The Respondent presumed that the Complainant would return to work on July 20, 2020. The Respondent did not direct the Complainants on sick leave. The Respondent argued that the Complainant had not activated the Company grievance procedure and her resignation outside of this step was not reasonable. Conway V Ulster Bank, Travers v MBNA Ireland Limited UD 720/2006 The Complainant was in receipt of legal advice from August 20 onwards and had been provided with her contract and employee handbook prior to her resignation. In drawing from An EAT case of Fitzsimons v Mount Carmel Hospital UD 855/2007, where the Tribunal was critical of a resignation set against offers to a complainant to save the employment. The Respondent submitted that the letter of resignation submitted by the complainant did not specify her reason for leaving and had to be viewed as a voluntary action. The Complainant did not respond to the Respondents offers of availability for follow up. The Respondent sought that the claim for unfair dismissal be rejected. Evidence of Ms Sheahan, Store Manager, Ms A. Ms A had worked for the Company for 20 years, 15 in the store at the centre of this case. She has since relocated to another store. Ms A reflected on the unprecedented environment surrounding covid 19 and the challenges of trying support the 6,000 customer attendances per week. She emphasised that “safety measures “were adopted through training 1:1. Declarations to cover absences greater than 2 days, travelling abroad and Isolation. Ms A recalled 16 July 2020, when she worked 8.30 am to 5.30 pm. Following a Government Decision on mask wearing, she spoke with the Area Manager, and they developed a shared goal to “get colleagues to wear masks “ She confirmed that the training completed in June 2020 did not mandate masks. Ms A confirmed the presence of guidelines maintained within the “covid folder “ Ms A equally declared that she held no animus against the complainant. The Complainant had requested a career break in 2019. On 16 July 2020, 5 staff were on duty and were party to an immediate conversation on masks. All staff popped on the masks provided by the respondent. The Complainant came in after 10am and the message on masks was repeated in the office. The Complainant replied that she thought “she would have more time “ Ms A told her that she understood that mask wearing was not her choice, but she was compelled to “implement it today “ She observed the complainants stress and told her that if she didn’t want to wear a mask, she could visit her doctor. No minutes were retained of the discussions, but Ms A contended that there were 2x 30-minute encounters. She confirmed that she wanted to discuss things with the complainant, but she left the workplace following her explanation of the sick leave policy. The Complainant acknowledged that she would not be paid. On 20 July 2020, the complainant attended with a colleague and presented her sick cert to Ms A. She said would be classed as being in full health if she didn’t have to wear a face mask. Ms A reaffirmed the practice around masks at work. The Complainant requested a Policy and Ms A sought to remind her around the training she had already completed. The Complainant went on to ask for an absence policy, disciplinary and safety and health policies by email before 5pm? The Store was busy, and the policies were not sent as they were available to staff on the notice board. Ms A did flag the issue with Human Resources. High levels of activity persisted at the shop, and she did not provide any further information. During cross examination by Mr Mullins, Ms A confirmed that the covid policy was contained in the June training documents. In June 2020, some staff had elected to wear masks, but it was optional. She confirmed that a contact log was maintained. Ms A confirmed that she had not contacted the nominated Staff Representative on the Policy. Ms A denied telling the complainant to finish work on July 16, 2020. Ms A confirmed that she had not secured a policy on mask wearing for the complainant. Ms A stated that 3 or 4 other staff had difficulties around covid, and others were on sick leave. Ms A affirmed that her priority as manager was prioritising health and safety for staff and customers. “If I could improve something to keep safe, I will do it “in respect of that covid era. Ms A denied refusing work to the Complainant and reaffirmed that she advised her to seek medical advice from her own Doctor. She was aware that the complainant visited the store in August 2020, but stated that she did not wish to see Ms A. Ms A confirmed that the Complainant was paid her sick leave entitlement, that was paid in full for July 2020 absence and less in August. The Complainant was paid 25 sick days. The complainant wanted communication by email. Ms A confirmed that she was shocked by the complainant’s resignation. She had not received a letter prior to this seeking a meeting. She had offered the complainant access to support meetings by telephone. Ms A said that access to occupational health was not advanced as the complainant had not consented. Ms A re-affirmed that she believed that she had outlined the business need around the move to mandatory mask wearing. Ms A respected that the Complainant had decided to leave and had discussed the matter with human resources within 5 hours. Evidence of Ms Maher, HR Manager, Ms B Ms B had worked at the Business since 2016 and had a full awareness of the climate surrounding covid 19. She was aware that some staff had issues surrounding mask wearing and the protocol was to speak to GPP then occupational Health and perhaps a risk assessment. Ms B summarised the discussion she held with the complainant on July 31 and the plan to bring in occupational health. Ms B confirmed that the correct trajectory for grievances was through the line manager. During cross examination reaffirmed the route for handling grievances between a complainant and their line manager. Ms B confirmed that the company had not looked behind the tabled resignation on November 19, 2020. There was no exit interview. In conclusion, Mr Cleary for the Respondent focussed on the duty of care demonstrated by the respondent to the staff during covid 19 and the complainant was an active participant in that damage limitation process. The Respondent submitted that the Company had taken reasonable steps to work with the complainant in the case, but she had not engaged in conflict resolution. He called on the application of Conway and Travers to the facts of the case. He said that the complainant had not raised a grievance and the Company was denied a chance to resolve this as a result of that omission. Offers of EAP and Occupational health were deflected by the complainant. |
Findings and Conclusions
I have been requested to reach to a decision on whether the Complainant in this case have proved a Constructive Dismissal from her position at the Respondent business on 19 November 2020.?
I appreciate that there has been a delay in bringing this case to finality due to the projected conflict of evidence highlighted at the first hearing.
The case resumed at the earliest juncture following the passing of the legislative developments post Zalewski in July 2021.
In reaching my decision, I have had regard for both parties oral and written submissions alongside the evidence adduced at hearing. I have also reviewed the case law relied on by the parties at hearing.
The Law on Constructive Dismissal is set out in Section 1(b) of the Unfair Dismissals Act, 1977 “dismissal”, in relation to an employee, means—
(a) ……….
(b) 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,
The burden of proof is on the Complainant in the case to demonstrate that arising from the conduct of her employer that was entitled to resign her position, either through the “contract test “Western Excavating v Sharp (UK) or “the “reasonableness test “Conway v Ulster Bank “
It is a high bar for a complainant but is not insurmountable.
In Adam Berber v Dunnes Stores ltd at the Supreme Court [2009] 20 ELR 61
In determining whether there has been a breach in the implied term of mutual trust and confidence in employment contracts, the Supreme Court held:
The test is objective.
The test requires that the conduct of both the employer and the employee be considered.
The conduct of the partiers as a whole and the cumulative effect must be looked at.
The conduct of the employer complained must be unreasonable and without proper cause and the 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.
In Conway, the EAT found that the bank employee had not acted reasonably in resigning without
“Substantially utilised the grievance procedure to attempt to remedy her complaints “
There are circumstances where a failure to action a grievance is excused and I will return to this later in my findings.
In exploring the facts surrounding this conclusion of employment, I was struck by the “quiet “ending of a 4.5-year employment tenure. There was no clear pre cursor event or a “last straw “occurrence. There was no explanation on the letter of resignation. There was no exit interview.
By then, the Complainant had been on a combined paid / unpaid sick leave from July 2020. There was no medical evidence available. I received a number of medical certs which were scientifically dated but not populated by a stated diagnosis or impediment.
I will return to a consideration of the status of the employment relationship at the commencement of the case. The events occurred during the first quarter of the national pandemic which challenged every workplace from February 2020 onwards. From my own recollection, we lived through an emergency period until the stability generated by vaccination from February 2021 onwards. It was a time of great fear and uncertainty. I can appreciate that in a Pharmacy setting that climate must have been hugely challenging.
I accept the Complainant evidence that she was a Customer Assistant not aligned to the Pharmacy part of the business. I accept that she was struggling being called on to determine just who fitted the essential customer profile and who didn’t.
However, I could equally determine that she was present in the workplace and participant in a covid management plan during this period. I must conclude that the Complainant had an operational knowledge of covid in the workforce by the end of June 2020. This is apparent in covid update sheets exhibited, where the complainant signed a validation of awareness of the covid 19 pandemic.
I accept that the complainant had applied for a career break in 2019 and this had been sanctioned for 2020.
I accept that the complainant did receive her staff bonus for 2020.
I have reflected on both the Complainants evidence and that of Ms A, the store manager regarding the two-way conversation which occurred on July 16, 2020.
The Government statement published on 14 July 2020 stated.
“The Government agreed today that face coverings should be worn by all customers in shops and shopping centres across the country. Retail staff will also be required to wear a face covering unless there is a partition between them and members of the public or where there is a distance of 2 metres between them and members of the public. Regulations, with details on enforcement and penalties are in the process of being drafted “
Both witnesses agree the discussion occurred over a 30-minute time frame but was not minuted.
There is a conflict in the advice given by Ms A and that understood by the Complainant. Ms A, in evidence acknowledged the complainants stated her difficulty in wearing a face mask at work. she told the hearing that she asked her “if she had a Dr? “
The Complainant confirmed that she was asked if she had a doctor? She also told the hearing that she was offered anti-depressant medication at that consult and was very deflated by that.
For me at least, this placed the complainant in a vulnerable state in July 2020. When I sought to clarify what medical condition kept her out of work? the complainant told me stress.
I find on balance of probability that Ms A did direct the Complainant to visit her Dr on 16 July 2020. I find that this was step one of a two-part process, where she was to return to discuss the outcome on July 20. I have resolved that conflict in favour of the respondent.
By then the complainant had presented with a colleague to produce a medical certificate.
Stress was not visible on the medical certs and was also further clouded by the Complainants own declaration on her health. She told Ms A that the mandatory imposition of face masks had kept her from work. I am troubled that the complainant did not engage in the next step intervention by the company, that of a referral to Occupational Health.
This was unusual. I did try to look behind it at hearing, but the complainant did not provide a congruent reason for her refusal to engage in this supportive service.
The Respondent exhibited a text from the complainant dated July 21, 2020, at 9.35 hrs.
This email reflected that her request for policies the previous day had not been realised. There was a heightened authority associated to this text and I quote:
“ ….. I will take it know there is nothing in writing again to present to me, which I am entitled to and asking for since late February regarding my very serious and stressful situation. I would appreciate it if you could send me your email address as I have to record another important issue regarding my case. “
The Respondent followed up with the letter of July 31. However, I did not find a follow up on the “important issue “flagged by the complainant in her text outside of the Data Access request lodged by her Solicitor dated 25 August 2020
I have reviewed the letter dated July 31 by Ms A and find that the communication is a clearly worded rationale for requesting face masks and importantly to my inquiry concluded with an offer of support and invitation to attend occupational health/wellbeing.
It is regrettable that the Respondent did not retain minutes of the July 20, 2023, meeting with the complainant. It is also regrettable that the letter agreed as originating on July 31, 2020, was undated. This was unhelpful.
The Complainant told the hearing that she commenced looking for new work from September 2020, finding new work in November 2020.
I have considered the period July 20 to November 19, 2020, carefully. I have not identified the circumstances where I can identify a manifestation of a repudiation of contract in this case.
I accept that being asked to wear a mask at work may have been challenging, however, I found that the respondent provided an explanation for this request. When a difficulty arose for the complainant, she was channelled to a Medical Officer and Occupational Health. It seems to me that the complainant may well have had mental health issues at that time as demonstrated in her own evidence on being offered anti-depressants, however, it is not plain to me that this issue can be attributed to the Respondent.
I found the Complainants persistence to secure a policy and other work-related policies to suggest a contemplation of litigation rather than a journey through a utilisation of the policies within the work setting.
I have found that this is a case where the complainant was provided with tools to resolve her stated difficulties at work, but she did not use them within the time frame of her sick leave. I accept the Respondent point that she was not alone as she had recourse to legal representation at this time.
I can appreciate that extended sick leave can prompt a feeling of separateness and distance, however, I have found a clear disconnect between the complainant and her employer arose much sooner and it was not processed as a grievance. This distinguishes the facts of the instant case from Kneite and Kaydee, where termination of employment followed a procedural intervention by the respondent.
I have difficulty with the complainant’s position that she was not invited to exercise a grievance. Industrial relations, by their very nature are voluntary and I am satisfied that the complainant had a working knowledge on how to present a problem for which she sought a resolution.
In Byrne v RHM foods Ireland Ltd 1979/69, the Complainant successfully argued that she was constructively dismissed in the face of isolation and being denied work to do.
In the EAT case of Chubb (claimant) v Select Retail Holdings [2007] 6 JIEC 0501, the Complainant was unsuccessful as he claimed that his role in the business had changed. The EAT decided that a modern business was in the process of adaptation, and this did not constitute grounds for redundancy.
In the instant case, the complainant found herself struggling in a business, which was itself struggling to adapt during Covid 19. The Complainant was advised to take sick leave, but diversified from that script when she told her employer that she was fit for work, but for mandatory mask wearing. I found this position to be a very unusual situation. If the complainant took issue with being placed on sick leave, I would have thought it reasonable for her to seek to reverse that decision before she took the major leap to resignation.
She did not observe her contractual obligation to give statutory notice. The complainant did not provide a reason for her termination of employment on 19 November 2020.
I am not satisfied that the complainant tried to save her employment and I say that she was unreasonable in that regard.
The Respondent also fell short of best practice to accept a resignation while the complainant was on sick leave and should have held an exit interview at the very minimum.
I have said that there have been occasions when a complainant has been excused an activation of the company grievance procedure (Keane v Western Health Board) Just as a respondent is judged on whether they practiced fair procedures on a case of dismissal. I must be satisfied that the complainant has exhausted the internal processes prior to resignation, Conway. I cannot determine that she did on this occasion.
I have given some weighting to the crisis of the covid 19 pandemic in my consideration of the facts of the case. I accept that the Complainant had a difficulty in wearing a mask at work, but she fell on processing this through either the grievance procedure or medically through OHD. This resulted in a procedural cul de sac from which this case has not recovered.
Having heard and considered the evidence and in all the circumstances, I am satisfied that the complainant was not entitled to resign from her job because of the respondent conduct.
I find that the actions of the complainant in her resignation from a procedural cul de sac deprived the parties of an opportunity to resolve this matter. This was not a reasonable approach.
I find that the complainant has not attained the burden of proof for constructive dismissal in this case.
I believe that the Complainant made a voluntary decision to leave her employment to try a new position in November 2020, as she had commenced looking for new work in September 2020. In essence, she voted with her feet.
I was struck by the Complainants stark notice of leaving the employment with immediate effect. I believe she was obliged to give reasons for this decision, and I do not accept her evidence that she was seeking to give a clear message. It was important for me to understand the decision maker in her reason for leaving employment at the moment of departure.
I find that the Complainant was not unfairly dismissed.
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. I find that the complainant has not attained the burden of proof for constructive dismissal in this case. I find that the Complainant was not unfairly dismissed as set down in section 1(b) of the Act.
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Dated: 03-07-2023
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Claim for constructive dismissal |