Alarm control operator who missed work over Christmas while ‘self-isolating’ loses WRC case

An alarm control operator who claimed he was overlooked for promotion because he self-isolated for two weeks over Christmas after becoming a Covid-19 “close contact” has failed in his claim of constructive dismissal.

Daniel Hughes told the Workplace Relations Commission (WRC) that he had been penalised for following the advice of his doctor when he left work and self-isolated at home for a period of 14 days, beginning on December 21st, 2020, after he was told he was a close contact of a work colleague with the virus.

Mr Hughes said he subsequently faced disciplinary action, suffered work-related stress and felt he was left with “no choice” but to resign from his position in April the following year.

His employer, Action Alarm Control 24 Limited, said the company was classified as an essential service at the time and had put in place all the necessary safety measures and procedures to allow Mr Hughes to continue to come to work.

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Private testing for all staff members, including Mr Hughes, was arranged by the company after he and others were identified as close contacts and Mr Hughes had tested negative for Covid.

Only staff who had contracted Covid-19 worked from home at the time, as there was a limited number of remote kits.

Dismissing the claim, the WRC ruled Mr Hughes resigned from his employment “of his own volition” and was not constructively dismissed.

Mr Hughes told the WRC that in November 2020, he and another colleague applied for a supervisor position that had become available and were both advised that they would be given an eight week trial to see which operator was more suitable for the position.

It was agreed the colleague would take the first period as acting supervisor.

On December 21st Mr Hughes was advised he was a close contact with someone in the control room where he worked and said he immediately sought the advice of his GP who told him that by law, he was required to self-isolate for 14 days. The doctor supplied his employer with a medical certificate to this effect.

Mr Hughes said he told his employer of the legal requirement to isolate for 14 days and also told them that he felt unsafe returning to work as he may have an infectious disease.

He said he offered to work from home, but his request was denied.

Mr Hughes said the company requested a meeting with him on January 4th regarding his decision to leave the workplace on December 21st and his refusal to return to work.

He said the company wrote to him on January 13th with the outcome of the disciplinary hearing and he was issued with a final written warning, which was to remain on his file for 12 months.

An appeal hearing took place on January 20th and the final written warning was upheld but its duration on his file was reduced to six months.

The complainant returned to work January 7th, 2021 and said he was asked to work upstairs in a separate area and was not allowed in the control room. He said there were several other workers in the control room at the time.

Mr Hughes said that on February 10th, his manager spoke to him in the upstairs kitchen. The manager said it was just an “informal chat” and said he could see how stressed the operator was by his final written warning. Mr Hughes said he asked when he would take over as acting supervisor and was told he would not be considered for the role because of the final written warning.

On March 5th he spoke to another manager about how unfair he considered his treatment to be, in not being given the chance for the supervisor position. That manager said he could get another chance when the final written warning had expired.

The complainant said that as a result of the stress from the situation at work, he went to a medical professional who concluded that he was suffering symptoms of work-related stress.

Mr Hughes submitted that he had exhausted all internal procedures, including appealing his grievance, and said he believed he had been penalised at work for raising a health and safety concern.

He told the WRC he had “no choice” but to terminate his own employment in writing on April 9th, 2021.

Action Alarm Control 24 Limited told the WRC that on December 21st, 2020 the technical operations manager was informed by one of the control room staff that he had tested positive for Covid-19. Three others, including Mr Hughes, were reported as close contacts.

A decision was taken by the company that all 60 staff would be tested for Covid-19 at a private test centre over the following two days.

The company submitted that when Mr Hughes was tested, the result was negative and a subsequent HSE test was also negative.

Mr Hughes was due to work night shifts on December 24th and 25th but he sent in a doctor’s certificate stating that he was unfit for work from December 21st, 2020 to January 4th, 2021. He did not return to work until January 7th, even though he was rostered to work the night shift on January 4th, 2021, the respondent said.

On January 4th the company asked Mr Hughes to come to an interview regarding leaving the workplace on December 21st without authorisation or justification, and unreasonably refusing a lawful request to return to work.

On March 7th the complainant requested a formal appeal by someone “completely impartial and unconflicted”. As the complainant did not provide any additional information, as requested, the manager said the matter was deemed closed.

Mr Hughes cleared his locker on April 7th, 2021 and proffered his resignation on April 9th by email citing “breach of contract”, “feeling unsafe” and believing “this to be a constructive dismissal”, the company stated.

WRC adjudication officer Hugh Lonsdale found that Mr Hughes had left his employment of his own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977,” he said.