Case Number: ADJ-00013264. Workplace Relations Commission

• Docket Number: ADJ-00013264
• Date: 08 April 2020
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant, a pharmacist, commenced employment with the Respondent, a retail pharmacy chain, on 6 November 2007, in the role of a Pharmacist. At the time of his resignation on 13 October 2017, the Complainant held the position of Supervising Pharmacist. The Complainant submitted a complaint to the Workplace Relations Commission on 5 February 2018. The complaint consisted of the following individual claims: 1. Under complaint reference CA-00017274-001: a complaint of Constructive Dismissal under Section 8 of the Unfair Dismissal of Act, 1977. 2. Under complaint reference CA-00017274-002 for: a complaint of penalisation under Schedule 3 of the Employees (Provision of Information and Consultation) Act, 2006. 3. Under complaint reference CA-00017274-003: a complaint in relation to rest breaks under Section 27 of the Organisation of Working Time Act, 1997. An Oral Hearing to consider the Complainant’s complaints, as set out above, took place on 28 June 2018, before a different Adjudication Officer. Before the Hearing got underway, the Complainant made a request that the Adjudication Officer would recuse themselves on the basis of a potential conflict of interest. Consequently, the Hearing was adjourned to allow the Adjudication Officer to consider the request. While the objection was subsequently withdrawn by the Complainant, the Adjudication Officer had already recused themselves and the case was, therefore, delegated to me to conduct a de novo investigation of the Complainant’s complaints. Oral Hearings for this purpose were conducted on 4 October 2018, 28 November 2018 and 9 September 2019.

Summary of Complainant’s Case:

CA-00017274-001 (Constructive Dismissal): Basis for the complaint: The Complainant alleges that he was forced to resign his employment as a Supervising Pharmacist with the Respondent for the following reasons: 1. He was prevented by the Respondent from fulfilling his duties and obligations as a Supervising Pharmacist in compliance with the Pharmacy Act 2007 (and the Memorandum of Advice as approved by the Council of the Pharmaceutical Society of Ireland, dated 10 February 2011) 2. He was exposed to an excessive workload and unsafe work practices and work premises contrary to Safety, Health and Welfare and the regulation amendments made thereunder. 3. He was subjected to a workload with accompanying concerns and anxiety regarding resources at work and safety issues. 4. He was subjected to unrealistic and inappropriate sales targets (to include prescription medication) and was treated as a salesman rather than a professional pharmacist exercising a supervisory role pursuant to the Pharmacy Act 2007. 5. He was not offered breaks in accordance with his entitlement under the Organisation of Working Time Act, 1997. 6. He was required to attend incessant meetings with his manager in the 10 months leading up to his forced resignation dealing with matters unrelated to his work as a Supervising Pharmacist. 7. He was subjected to ongoing victimisation arising out of assistance given to a colleague pharmacist at an Employment Appeals Tribunal Hearing. 8. He was treated unfairly in respect of a bonus payment and was obliged to issue legal proceedings to vindicate his entitlement when the Respondent failed to deal with his grievance under Company Policy. 9. The work practices which were forced on the Complainant by the Respondent necessitated him seeking medical and psychological assistance. 10. His performance appraisal rating was unilaterally and unfairly downgraded. Timeframe leading up to his resignation: According to the Complainant’s submission, he was exposed to a chaotic situation on his return to work on Tuesday, 2 October 2017, the previous weekend having been his rostered weekend off. The Complainant submitted that he found the situation he returned to utterly incomprehensible and inexcusable. According to the Complainant’s evidence, an agency locum pharmacist, who was a hospital pharmacist, with little community experience, had covered over the weekend. In addition, the Complainant submitted that the agency pharmacist was supported by a dispenser, who had just commenced her training. According to the Complainant, there had been limited counter assistants, store Manager or Under Manager and no support pharmacist in place. The Complainant submitted that this resulted in essential services being suspended for three days, with the shop not being in a position to provide flu vaccination and other such services, over the weekend. According to the Complainant, on his return on the Tuesday, he was required to perform 12 flu vaccinations. In addition, the Complainant submitted that administrative errors were made over the three days. He also contended that, in his belief, the disorganisation and poor service endanger the health and safety of the public. According to the Complainant’s submission, this was another example of how the Respondent allowed commercial interests take priority over staff and public safety. The Complainant submitted that, as a result, as the Supervising Pharmacist under the 2007 Act, he could no longer stand over what happened, on an ongoing basis. The Complainant further submitted that his concerns were well documented over a protracted period of time both to the Respondent and to the Pharmaceutical Society of Ireland. The Complainant stated in his evidence that, as a matter of conscience and ethics, he could no longer continue in his role. According to the Complainant, prior complaints went unheeded. He further contended that his line manager, who he claims was inexperienced and completely out of his depth, displayed mood swings. The Complainant also contended that his line manager altered his performance appraisal rating, without justification. According to the Complainant’s submission, the cumulative effect of all matters left him at his wit’s end and with no option but to terminate his employment forthwith. The Complainant submitted that, in February 2017, he had threatened to resign, but was talked out of it on that occasion. According to the Complainant, he had to take a week off work arising from the stress of the situation on 7 February 2017. The Complainant further submitted that, by October 2017, he had no choice, for his own and his patients’ safety and well-being but to resign after in excess of 11 years loyal and dedicated service. The Complainant submitted that since, from around May 2015, he had been under severe pressure and stress at work. According to the Complainant, this pressure became unbearable and caused him to suffer ongoing occupational stress injury, including psychological and emotional distress and depression. According to the Complainant, the Respondent failed to honour the primary role of the pharmacist as one who insures the maintenance and improvement of health. Supporting submission made by the Complainant: The Complainant made the following submission in support of his complaint of constructive dismissal as set out above: a) Lack of a Dispenser According to the Complainant’s submission, he was not provided with a Dispenser when the lady (Ms A) who was carrying out the function left and was not replaced. The Complainant also submitted that a second dispenser (Ms B) also left and was not replaced. The Complainant submitted that the non-availability of a Dispenser meant that he was required to self-check medicines being dispensed. According to the Complainant, this...