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Employer’s Failure to be pro-active leads to Labour Court Award of €25,350

This case was an appeal against the decision of an Adjudication Officer who held the claim made by Pauline O’Connell against her former employer, Homecare Medical Supplies, for constructive dismissal was not well founded. Pauline was initially employed by the Respondent as a retail assistant in 2010 in Galway branch. She was promoted to Retail Supervisor in the same branch in 2013. She was paid €12 per hour and typically worked a 32-hour week. She resigned from her position in January 2016.

As retail supervisor she reported to the Retail Manager and Pauline was responsible for two retail assistants (Ms G and Ms S). In May 2015, a general email to all staff was sent advertising a recruitment competition for the position of ‘Retail Team Leader’. The job specifications were the same duties as her role as retail supervisor.

Pauline contacted HR manager to express her concerns and was told she was not the supervisor as the retail manager does the supervisory duties. Pauline informed the HR manager that she had a supervisor contract and in response was told that the contract was not passed by quality control and “was not worth the paper it was written on.”

Pauline contacted the MD regarding the matter and was reassured she was the supervisor. He in sinuated that she would be successful in the “competition” should she enter so she did. There were 3 applicants who were interviewed for the role. Pauline being the most experienced due to her supervisor role. She did not get the job. Ms G, who formally reported to Pauline, got the job. They essentially swapped roles.

Pauline found out the she scored the lowest of the 3 applicants concerning “work experience”.
She anticipated the breakdown in her relationship with Ms. G due the role reversal and after three weeks things got worse. Ms. G’s demeanour changed towards her. Pauline voiced her concerns to the MD and was told to use the formal grievance process.
She subsequently submitted a grievance letter on 20th November 2015 relating to the Team Leader’s conduct (Ms.G). Pauline went to her GP the day off the second meeting and was prescribed anti-depressants and sleeping tablets and went out on work related stress. The MD admitted that he did not make any contact with the complainant in the seven weeks she was out sick.
Pauline resigned on 13th January 2016.

The Labour Court was satisfied that the grievance ultimately raised by the complainant in November 2015 was linked to the concerns she first attempted to raise with the MD concerning the loss of her supervisor job.
It held that the MD should have foreseen the breakdown in relationship when Pauline and Ms. G reversed roles. The Labour Court was critical that the company made no contact with Pauline when she was on sick leave, and did not bother having her examined by a company appointed medical practitioner. The Labour Court held that this indicated that the company wanted to disengage from Pauline.

The Labour Court also noted that the MD made no offer or encouragement to Pauline to reconsider her resignation.
The Labour Court held this to be constructive dismissal and measured the period of fifteen months of financial loss, from date of resignation on 13th January 2016 to mid-April 2017 and awarded: €25,350

Take Away
This case highlights the importance of employers to address the issue when an employee is out on sick leave, particularly when it is “work related stress” and to attempt to have the employee reconsider his/her decision to resign in such circumstances. However, more interestingly, the Labour Court in this decision has now put an onus on employers to anticipate the consequences and the impact of its decisions on its employees and to be responsible to minimise such impact.

For any queries, please contact Anne O’Connell Solicitors at info@aocsolicitor.ie or +353 1 2903580

1st December 2017
Anne O’Connell
1-3 Burton Hall Road
Dublin 18

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