Crime & Law

Claim by health worker for constructive dismissal fails at WRC

Occupational therapist complained of feeling ill in new building but declined transfer

The complainant’s case was found to have been lodged prematurely and so could not therefore be considered. Photograph: iStock

Stephen Bourke
Thu Apr 14 2022 - 13:59

An occupational therapist who complained of feeling unwell following a move to a newly-built primary care centre and suggested that the building undergo “electromagnetic field testing” before resigning has had her complaint for constructive dismissal rejected.

The Workplace Relations Commission (WRC) also heard that an air quality report had to be specially commissioned by the primary care centre in response to complaints about an odour, which Health Service Executive witnesses said was just “new room smell”.

Geraldine Kubernat had lodged a complaint with the commission under section eight of the Unfair Dismissals Act against her former employer, the HSE, alleging she had been constructively dismissed.

She had spent 20 years working at an unidentified HSE site before she was moved to a new, purpose-built primary care centre in January 2018 – but told the commission she and her colleagues had issues with the move.

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These included the use of open-plan offices, the inconvenient location of a store room and “teething issues” with the new building such as heat regulation and air quality.

Ms Kubernat also complained of an “odour” and said she had developed “headaches, dizziness, nausea and a feeling of being light-headed” following the move.

When the issues persisted, the manager of the primary care centre suggested Ms Kubernat could move to another location but she declined as it would involve a longer commute and she had a history of “back issues”.

In October 2019, Ms Kubernat’s GP signed her off work on sick leave, and she was referred to the HSE’s occupational health department, the commission heard.

On New Year’s Day 2020 she lodged a formal grievance, with the process continuing into July that year, when the decision-maker opted not to uphold her complaint.

Emily Sexton of Comyn Kelleher Tobin Solicitors, who appeared for the HSE, argued Ms Kubernat had no legal standing because she had submitted her complaint form on December 23rd, 2020, before her employment had come to an end.

Adjudicating officer John Harraghy found the correct date of dismissal was “the date on which one month’s notice given by the employee expires” – in this case, St Stephen’s Day, 2020, and that he had to dismiss Ms Kubernat’s claim.

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