Worker

Employer

Anonymised Parties

A Recruiter

A Recruitment Company

Representatives

Self Represented

Seán Costello Solicitors

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act 1969

ADJ-00063015

22/12/2021

The Worker alleged she was constructively dismissed during Covid as a result of the actions of the Employer. The Worker was employed as a Recruiter from May to December 2021 and commenced employment with a new employer in January 2002.

The Worker alleged that to her employer created an unsafe working environment, not following covid guidelines, setting unachievable targets for only 1 employee (her), threatening to fire her, threatening to demote her, and being very poorly treated by her employer, she alleged she was constructively dismissed. She alleged was forced to leave her role and seek alternative employment.

She was unable to begin new employment until 12 January 2023, resulting in a loss of 1 month’s salary.

Claim: €2,000 (equivalent to 1 month’s pay).

The Worker does not have the requisite period of service under the Unfair Dismissals Act 1977 as amended or otherwise and has not set out the legal or factual basis for this complaint.

The Worker sets out in her Complaint what she states to be her interactions leading to her resignation and purports to have been dismissed. The Worker resigned by letter 15th December, 2021.

The position with regard to the Employer’s Covid-19 Guidelines and Procedures is as follows. The Worker makes reference to an unsafe working environment. These allegations are refuted. The Employer is acutely aware of the needs of each of its staff and tries to accommodate them and did so particularly in light of the Covid pandemic. This was particularly so in circumstances where one of the staff of the Employer company worked full-time during the pandemic in the office notwithstanding having a significant underlying health condition. Extensive policies and procedures were put in place and additional measures adopted by the Employer during this period which included the following:

(a) All windows were open at all times and air purification equipment was installed as soon as it was readily available;

(b) Adoption of Covid safety procedures; IBEC trained the Employer’s Covid Officer  to deal with all Covid issues.

(c) Voluntarily twice weekly antigen testing of all staff in the office;

 (d) Designated WhatsApp group with results of voluntary testing regime

 (e) Voluntary disclosure by all staff of their vaccination status;

(f) All staff voluntarily confirmed they were fully vaccinated at the earliest opportunity;

(g) Assistance in sourcing vaccinations for staff when they became eligible for vaccination;

(h) Full payment for staff who took time off for Covid symptoms even when testing confirmed they did not have Covid;

(i) Sourcing testing capability for symptomatic staff members.

(j) Considerable time was used to finalise and agree a work from home policy.

The company believes that every measure possible was taken to make the workplace as safe as possible but notwithstanding this, reached out further to the Worker to ensure that working from home was to be made as viable as possible in circumstances where it was the view of the Employer that it was far from ideal given the nature of the business and the interests of the clients (employee remote work policy agreement).

 The Worker at one stage had requested that the location of her “home” was not necessarily where she lived but wanted this also to provide for living in Cork (where we understand the Worker’s boyfriend resided). The Employer is aware that the Worker felt safe enough to travel by public transport and attend a wedding in November 2021. The Owner and others within the staff of the Employer company were available to the Worker as much as possible, particularly in the constricting circumstances of the Covid pandemic and the impact this had on the rest of the company. It is suggested by the Worker that the Owner was not sufficiently available to her, but he was doing his level best at that time having regard to the needs of the Employer company and the other staff. The fact was that working from home a full-time basis was not suitable for the business to be conducted by the Worker and in fact increased the workload of others. At no stage were targets which were not achievable provided to the Worker. The Employer refers to an email exchange 29th November, 2021 in this respect. The Worker was not being ignored as she claims or excluded or indeed treated any differently. It was in the Employer’s best interest to ensure that Worker performed to the best of her ability notwithstanding that, as previously stated, working from home was not a feasible or workable option given the nature of the work of the company and in particular the inexperience of the Worker. At no stage was the Worker threatened with demotion or being “let go”. There is no question of there being a lack of communication or misinformation in connection with the day to day working of the Worker. The Employer feels that every facility within their relatively restricted means having regard to the pandemic were being extended to the Worker and a very considerable amount of time had been expended in bringing about ultimate agreement on the working from home policy. Notwithstanding, it was at all stages the Employer’s view that establishing and enhancing the skills that were required for the business and the relationships with clients that were required particularly with the inexperience of the Worker could not be undertaken working wholly remotely which was what the Worker sought. This cannot be delivered successfully entirely remotely but could have been done to a more effective extent in a safe working environment, as was provided by the Employer on an on-site basis. It is true that the Owner stated that the Worker was a very bright and very good young professional. As with all members of staff, credit is given where due and it was strongly felt that ideally in order for her to progress at the level that she had shown, it was best that she work to a greater extent in the office and not exclusively remotely. The Owner offered her his own office away from the rest of the team which had four windows and its own door but rejected that offer. It must be said that wearing a face mask at this time was not a government requirement and indeed further, the Worker was offered her own office but rejected that offer. The Employer does not set at any stage unreasonable targets for any team member. These are not, of course, achievable and are completely counter-productive. It was felt that the Worker sought the targets which she believed were achievable and not what the company believed having regard to her experience she should achieve. The Worker was the only employee working from home and it is untrue and incorrect to say that the Owner stated that he would only help her if she returned to the office. A lot of time had been spent reaching agreement on the work from home policy. What the Owner was trying to do in the context of availability was to impart his 20+ years’ experience, and it was felt by the Owner that this was the best way for the Worker to fulfil her potential. It is clear that the Worker disagreed with this analysis and resigned. The Worker immediately obtained another job. The Worker at this time was on probation and in any event the Employer denies that there was any dismissal.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The Worker decided to take her complaint under the Industrial Relations Act rather than the Unfair Dismissal Act, for constructive dismissal, even though her essential complaint was for constructive dismissal. Disputes under the Industrial Relations Act rely on a voluntary system in Ireland and Recommendations on a dispute are not enforceable in law. The period during Covid was a very difficult period for all involved and lead to many conflicting views and stressful situations for staff and employers. The Hearing of this case was delayed due to the prior Adjudicator being appointed as a District Court Judge, but this delay has no material effect on my assessment of the situation. The differing positions adopted by the parties in respect of the Workers situation is extremely difficult for a third party to assess or reconcile. The Employer allowed the Worker work from home but it was alleged was setting targets which the Worker felt were unrealistic. The Employer disagreed. The Employer set out the steps it took to manage Covid. The Worker was not happy with these. The Complainant resigned and took up new employment fairly quickly.

Trade Dispute