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Employer ordered to pay worker €3,712 after rejecting Covid-19 remote working proposal

The case was heard before the Workplace Relations Commission.
Jan 26th 2021, 1:43 PM 40,769 0

AN OFFICE-BASED worker here had no option but to resign from her job during the first Covid-19 lockdown after her employer rejected her plea to work remotely from home.

That is according to Workplace Relations Commission (WRC) Adjudication Officer, Kevin Baneham who has ordered the employer pay the operations coordinator €3,712 compensation for her unfair dismissal on 12 May last.

Today, employment law expert, Richard Grogan described the WRC ruling as “a wake-up call” for employers.

Grogan – who wasn’t involved in the case – stated: “The amount of compensation isn’t high as the worker got new a new job within a short space of time, but the findings are important as it is the first ruling that the WRC has made concerning a Covid-19 related unfair or constructive dismissal.”

The Dublin based solicitor stated: “I believe that we are going to see an awful lot more of such Covid-19 cases going through the WRC”.

In an email to her employer, a university-based facilities management service provider last April, the worker stated that her employer’s refusal to accept the remote working proposal “has increased the infection risk with Covid-19 for all three operations coordinators”.

She stated: “In the event one of us gets sick I will be putting at risk my husband who is an asthmatic patient.”

In his ruling, Baneham found that the university-based operations coordinator had “no real option but to resign” after her employer failed to take reasonably practicable steps to mitigate risk posed by Covid-19 in the workplace.

Baneham found that the employer failed to implement the proposals made by three office workers that would have eliminated the risk of transmission of Covid-19 in the workplace.

The employer rejected a proposal from the three that two could work remotely at any one time in response to the risk posed by Covid-19.

In the case, the woman – represented by Siptu – worked for the facilities management company at a university where there are 3,200 rooms to accommodate students.

In his findings, Baneham found that the requirement by the employer that the operations coordinator attend the workplace without adequate consideration of the elimination of risk posed by Covid 19 “amounts to repudiation of contract”.

He stated: “This arises as providing a safe place of work is a fundamental term of the contract of employment.”

Baneham found that the employer did not comply with the statutory framework by first seeking to eliminate risk, “causing the worker to attend work in greater danger”.

Baneham stated: “In this case, the risk could have been readily eliminated or reduced through ‘reasonably practicable’ steps, as suggested by the complainant.”

Baneham stated that the operations coordinator “articulated a clear grievance and suggested how the work could be done in the safest way possible”.

Baneham stated: “This was not adequately considered by the respondent, leaving her with no real option but to resign.”

The award made by Baneham would have been higher but for the worker concerned securing alternative employment within five weeks at a higher pay rate.

Baneham stated: “As an infectious disease, Covid-19 constitutes a biological hazard. In this context and at the centre of this case are the duties of both employer and employee arising from the Safety, Health and Welfare at Work Act and the underpinning health and safety principles.”

Some 1,000 students were stuck on the campus in March, some of whom were self-isolating and Baneham stated that the worker and her colleagues dealt with the difficult task of managing thousands of students who vacated their accommodation at the start of the lockdown.

Baneham stated that it was striking that the employer did not trial the “eminently sensible” suggestion by the three office-based operations coordinators that only one worker attend the office and the others work remotely at any one time.

The worker provided a “lockdown” photo taken on 17 April last showing her and her colleagues working in close proximity in the small office.

In an email dated 17 April, the worker told her employer that she was not able to socially distance from her two colleagues in the workplace.

Formal grievance

In a formal grievance lodged on 30 April, the three operations coordinators stated: “All three of us have family members in the ‘at risk’ category and we are concerned about the health of our family members as well as our own wellbeing.”

They stated that these concerns were brought to the employer’s line manager attention numerous times at the start and during the Covid-19 outbreak “but nothing was done about it and zero care and consideration was given back”.

They state: “Most of our work can be completed from home but if there are issues that require our presence there will be one coordinator in the office to address them. This measure will minimise the infection risk and will help us keep our family and ourselves protected.”

However, in response the employer rejected the work from home proposal.

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In a letter on 4 May, the employer stated: “Prior to Covid-19 there was never a suggestion that the roles could be performed remotely, and the same situation pertains in a post-Covid situation.

“Each person may absent themselves from work and check if they are entitled to a state benefit. The position will be kept under review, but at present the employer’s position is that the three roles are not suitable for remote working.”

The employer stated that it had taken Covid-19 workplace precautions, including PPE; changing the physical layout of the office; the installation of screens and warning tape and moving desks.

In her emailed resignation letter on 12 May, the operations coordinator stated on her return to the office her anxiety and stress levels have once again increased and on this occasion have caused her to experience panic attacks.

She stated “With this email communication I am handing in my notice, as I am not able to manage the levels of pressure imposed by management and the impact this is having on my health wellbeing.”

She stated the employer’s approach “to the whole situation has been a real disappointment and the lack of care for their employees has left me feeling disheartened and insecure”.

The MD of the facilities management company told the hearing that the worker was of the opinion that she should work from home, but the company’s client would not have allowed this to happen.

He stated that her job was essential, and the client would not have allowed her to work from home.

He outlined that it was the coordinators’ role to deal with the students and they were required to be on campus.

The MD stated that no staff member thankfully contracted Covid-19, either in the university or elsewhere.

He stated that the client had the best record of all the universities in Ireland and this was due to the precautions taken.

In response to the proposal that some coordinators work from home, the MD told the hearing that it was so busy at this time, so they all needed to be there.

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Gordon Deegan

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