Claim of Constructive Dismissal following WFH request refusal

by Sarah Maher, Solicitor at Reddy Charlton LLP, Solicitors

A former employee of a facilities management company has been awarded €3,712.50 in compensation by the Workplace Relations Commission (WRC).  The award was made in respect of her claim of constructive dismissal, pursuant to the Unfair Dismissals Acts 1977-2015 .  Under the Unfair Dismissals legislation, an award of compensation is limited to the loss suffered by the employee.

The award was the maximum that could have been made in the circumstances and reflected the 5 week period in which the Complainant was unemployed following her resignation.

Background

The Complainant was employed by the Respondent, a facilities management service provider, as a facilities operations coordinator and worked for the Respondent’s client which was a University. She worked in close proximity with two other colleagues in an on-site office and dealt with the checking in/out of students to the accommodation along with maintenance and administrative duties.

The Complainant and her colleagues raised a formal grievance with the Respondent as a result of health and safety concerns relating to Covid-19.

As part of this grievance, the Complainant requested that she be permitted to work from home and proposed a system whereby the Complainant and her colleagues would rotate working from home so that only one individual would attend the workplace at a time.  This request and proposal was rejected by the Respondent on the grounds that the Complainant and her colleagues were essential workers and the nature of their work required them to all attend the workplace.

In April 2020, the Complainant and her colleagues availed of certified sick leave as a result of the Respondent’s refusal to address Covid-19 related health and safety concerns raised about the workplace.  At the WRC hearing the Complainant said that her main concern was her husband and father-in-law who both had underlying health conditions.

The Complainant returned to work on 11 May 2020 and stated that it was only at this point that the implementation of additional health and safety measures was addressed by the Respondent.  No formal grievance meeting was held by the employer on her return and the Complainant’s position was that the health and safety measures introduced did not satisfactorily address her concerns.

On 12 May 2020 the Complainant resigned from her employment.

WRC Claim

On 22 May 2020 the Complainant lodged a complaint of constructive dismissal to the WRC.  The WRC adjudication officer was required to determine whether the failure of the Respondent to adequately and appropriately address the health and safety concerns of the Complainant could be reasonably held to be the cause of her resignation.

WRC Decision

The WRC adjudication officer found that the Complainant had been constructively dismissed and set out a number of reasons for his decision. Firstly, the Complainant raised her complaint initially via an internal grievance and suggested appropriate remedies (working from home on a rotational basis) to resolve the grievance.  These were rejected by the Respondent without any real consideration.  The adjudication officer noted that it was “striking that the respondent did not, at least, trial this suggestion”.

Secondly, the client University (to whom the Respondent provided the services) did not object to the Complainant’s proposal of working from home and facilitated this with the provision of laptops. Despite this, the Respondent failed to accede to the Complainant’s proposal.

Finally, the adjudication officer noted that the Respondent’s proposed physical or PPE related mitigation measures were not appropriate alternatives to eliminate risk compared to that which would have been achieved via the rotational work from home system suggested by the Claimant.

The WRC adjudication officer referred to the Safety, Health and Welfare at Work Act 2005 in his decision, and in particular to section 8(2)(e) of that Act which sets out the employer’s duty 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.”  He also made reference to the employer’s health and safety duties that are implied into all contracts of employment.

The adjudication officer held that the Complainant was entitled to compensation equivalent to five weeks’ pay which amounted to €3,712.50.  The maximum compensation that can be awarded under the Unfair Dismissals legislation is two years’ remuneration based on the employee’s loss. In this case, the Complainant’s loss was limited to 5 weeks’ pay as she obtained alternative employment soon after her resignation.

About the author

Sarah is a solicitor in Reddy Charlton’s Employment and Regulatory team. Sarah has experience in both contentious and non-contentious employment law. Her work includes drafting employment contracts and handbooks, providing restructuring and redundancy advice, negotiating severance agreements and advising on restrictive covenants and internal grievance and disciplinary procedures. Sarah also advises on disciplinary and regulatory issues.

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