Workplace Relations Commission ruling that Covid-19 is a ‘biological hazard’ seen as a wake-up call for employers
An employer has been ordered to pay compensation to an office-based worker who resigned from her job during the first Covid-19 lockdown after her plea to work remotely from home was rejected.
Employment law expert Richard Grogan described the Workplace Relations Commission (WRC) ruling as “a wake-up call’ for employers.
WRC adjudication officer Kevin Baneham has ordered the employer to pay the woman, who worked as an operations co-ordinator, €3,712 compensation for her unfair dismissal on May 12 last year.
Mr Grogan – who wasn’t involved in the case – stated: “The amount of compensation isn’t high as the worker got 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 co-ordinators”.
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, Mr Baneham found that the operations co-ordinator 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.
Mr 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, Mr Baneham found the requirement by the employer that she 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.”
Mr 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”.
“In this case, the risk could have been readily eliminated or reduced through reasonably practicable steps, as suggested by the complainant,” Mr Baneham said.
He stated the operations co-ordinator articulated a clear grievance and suggested how the work could be done in the safest way possible.
“This was not adequately considered by the respondent, leaving her with no real option but to resign.”
The award made by Mr Baneham would have been higher but the worker concerned secured alternative employment within five weeks at a higher pay rate.
Mr 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.”
Up to 1,000 students were stuck on campus in March, some of whom were self-isolating. Mr Baneham stated 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.
The worker provided a ‘lockdown photo’ taken on April 17 showing her and her colleagues working in close proximity in the small office.
In an email sent that day, the worker told her employer that she was not able to socially distance from her two colleagues in the workplace.
In a formal grievance lodged on April 30, the three operations co-ordinators 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.”
However, the employer rejected the work-from-home proposal.
In a letter on May 4, 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.”
In her emailed resignation letter on May 12, the woman stated that on her return to the office, her anxiety and stress levels had once again increased and had 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 and wellbeing.”
She said 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 managing director of the facilities management company told the hearing that the worker was of the opinion 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 co-ordinators’ role to deal with the students and they were required to be on campus.
The managing director stated that no staff member contracted Covid-19, either in the university or elsewhere.