FULL RECOMMENDATION
SECTION 77, EMPLOYMENT EQUALITY ACT, 1998 PARTIES : CHARLES SHINKWIN (REPRESENTED BY EUGENE F. COLLINS SOLICITORS) - AND - DONNA MILLETT (REPRESENTED BY MICHAEL LANIGAN & CO SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr. Somers |
1. Application for Redress under Section 77(2) of the Employment Equality Act, 1998.
BACKGROUND:
2. The complainant referred her case to the Labour Court on the 5th of August, 2003. The following is the Court's determination:
DETERMINATION:
The respondent is a Medical Consultant in ENT and carries on a practice at Aut Even Hospital in Kilkenny. The complainant was employed by the respondent in her capacity as a Medical Secretary. The employment commenced in January, 2001, and ended in February, 2003.
In early January, 2003, the complainant informed the respondent that she was pregnant. She later learned that she was expecting twins and informed the respondent accordingly. On the 12th/13th February, 2003, there was an acrimonious exchange between the parties in respect of an employment related matter. Following on from this exchange, the complainant wrote a letter of resignation which she submitted to the respondent. The complainant subsequently sought to withdraw her resignation but this was not accepted by the respondent, and the complainant’s employment terminated on the 27th February, 2003.
The complainant contends that the circumstances in which her employment terminated amounted to a dismissal. The complainant further contends that the dismissal was by reason of her pregnancy and that constituted discrimination in terms of Section 6 and contrary to Section 8 of the Act.
Submissions:
The submissions of the parties, which were supported by oral evidence, can be summarised as follows: -
The Complainant’s Case:
The complainant told the Court that prior to commencing her employment with the respondent she had worked as a Medical Secretary to another consultant at Aut Even Hospital. She resigned from this employment in the year 2000, after she had given birth to her first child. On or about January, 2001, the respondent contacted the complainant and offered her employment as his Secretary. At that stage, the respondent was establishing his Consultancy Practice at the Hospital. The complainant accepted the post and for the following two years worked with the respondent in the management and development of his practice. The complainant told the Court that she had an excellent working relationship with the respondent who was generous towards her both financially and in commending her work.
The complainant became pregnant towards the end of 2002. On returning to work after the Christmas holidays on 2nd January, 2003, she telephoned the respondent and advised him of her pregnancy. The respondent’s response was positive and he congratulated her.
On the 7th January, 2003, the complainant became aware that she was expecting twins and she informed the respondent accordingly on the same day. The complainant told the Court that on being so advised the respondent had said, “Well, that’s it, you won’t be back”.
It is the complainant’s case that the attitude of the respondent towards her underwent a fundamental and adverse change thereafter. She said that he became moody and irritable towards her and made unreasonable demands of her. She also said he routinely undermined her in front of third parties, including patients. Specific instances of the conduct complained of was given in evidence. The complainant referred, in particular, to an occasion on which the respondent reprimanded her in the presence of theatre staff because of a minor error involving a patient’s date of birth.
On or about the 12th February, 2003, the complainant was attending to some financial matters on behalf of the respondent. The respondent entered the office in which she worked in the company of a patient and demanded to know what she was doing. The complainant felt it was inappropriate to discuss financial matters in the presence of a patient and indicated to the respondent that she would provide the information later. According to the complainant, the respondent continued to demand an answer to his query in an aggressive and belligerent manner. He asked her to leave the office and to accompany him into the corridor where he remonstrated with her in relation to the incident. The complainant said that she felt she had been degraded and demeaned in front of others by this incident.
The following day (13th February, 2003) the complainant sought a private meeting with the respondent to express her dissatisfaction of the occurrences of the previous day. She said that she hoped to obtain an apology from the respondent. Rather than apologising, the respondent addressed her in terms which she found to be highly offensive, during which he informed her, inter alia, that he had deliberately conducted himself in the manner which she described the previous day with a view to teaching her a lesson. According to the complainant, the respondent also told her that he would speak to her whenever he wanted and in whatever terms he wished. She told the Court the respondent then proceeded to pick up the telephone and engaged in a pointed and hurtful mimic description of her telephone technique.
The complainant said that over the course of the afternoon following this incident she came to the view that the conduct of the respondent was such that she would be physically and emotionally unable to remain in the employment for the remaining ten weeks up to the commencement of her maternity leave. She said that in haste she typed up a letter of resignation and left it on the respondent’s desk. Over the course of the following weekend, the complainant discussed the matter with her husband and came to regret her decision to resign.
The complainant told the Court that she remained shaken and upset by the conduct of the respondent and was unable to go to work on the following Monday (17th February, 2003). At around 10.00 a.m. her husband telephoned the respondent and informed him that she would not be going to work on that day. Later that morning, at approximately 11:30am, the respondent telephoned her and asked if she intended returning to work or should he organise her replacement. It was the complainant’s evidence that the respondent told her not to bother returning to work in order to work out her notice.
The complainant was subsequently seen by her General Practitioner on 19th February, 2003, and she was diagnosed as suffering from stress related illness, including high blood pressure, and was diagnosed as unfit for work. Her GP advised her to withdraw her letter of resignation which she did by letter hand delivered to the respondent’s office that same day. Subsequently, on 21st February 2003, the complainant received a letter from the respondent dated 18th February, 2003, by which the respondent accepted her resignation. On 6th March she received a reply to her letter of 19th February by which the respondent refused to accept the withdrawal of her resignation. This letter was dated 27th February, 2003.
The complainant’s husband, - Mr. Matt Millett - gave evidence before the Court. He said that his wife appeared to be happy in her employment with the respondent until the onset of the events which preceded the termination of her employment. Mr. Millett recalled the events of 12th/13th February and said that his wife had come home from work in a distressed and upset condition. From his conversation with her, he learned that the cause of her upset was the manner in which she had been treated by the respondent at work. He and the complainant had discussed the matter over the weekend and he formed the view that the difficulties between his wife and the respondent could be resolved on an amicable basis and that she should withdraw her letter of resignation.
Mr Millett went on to the tell the Court that on the Monday morning his wife was extremely distressed and she was concerned about the effects which her condition could have on her pregnancy. She was unable to attend work and he telephoned the respondent at approximately 10.00 a.m. on that morning and advised him accordingly. They had a very short conversation in which he (Mr Millett) told the respondent that his wife was unwell and would not be attending work that day. The respondent merely acknowledged what he had been told.
On the morning of the 19th February, after consulting her doctor, the complainant prepared a letter withdrawing her resignation. He hand delivered this letter, together with a medical certificate, to the respondent’s offices at Aut Even Hospital. Later that evening Mr. Millett telephoned the respondent on his mobile telephone to inquire if the letter had been received. The respondent confirmed that it had. Mr Millett went on to have a discussion with the respondent in the hope of effecting some reconciliation between him and his wife. However, it was evident to him that the respondent was not disposed to resolving the difficulties which had arisen.
The Respondent’s Case:
The respondent in his submission and in his evidence before the Court unequivocally denied the allegations relied upon by the complainant in advancing her case. The respondent told the Court that his attitude towards the complainant had not changed in any way as a result of her pregnancy. He accepted that when he was informed that she was expecting twins he did say words to the effect “that’s it then, you won’t be back”but that this was said in a joking and friendly manner.
Regarding the complainant’s allegations that he has reprimanded her in relation to a minor mistake in the presence of theatre staff, the respondent recollection was that the incident related to a serious error which had been made while compiling a patient’s charts. According to the respondent, the complainant had entered the wrong surgical procedure for a patient and that this was a most serious matters which he felt obliged to raise with the complainant in forceful terms. Furthermore, the respondent’s recollection was that he had raised the matter with the complainant over the telephone
With reference to the events of the 12th/13th February, 2003, the respondent’s version of events was that he had asked the complainant to provide him with an explanation about a particular invoice which he noticed in her office. She responded in a curt and dismissive fashion. The respondent told the Court that he asked to speak with her in the corridor and pointed out that her manner of address was unacceptable. He said that this discussion had not taken place in the presence of either patients or other staff. On the following day, he was approached by the complainant who addressed him in a disrespectful and belligerent fashion in relation to the events of the previous day.
The respondent said that he took grave exception to the complainant’s manner of address and he accepted that an acrimonious discussion ensued between them. The respondent was, however, emphatic that the discussion did not proceed in the manner alleged by the complainant. He had merely explained to the complainant that he was in charge of the practice and that he expected her to acknowledge this. The respondent denied that he had told the complainant that he could talk to her any way he liked or that he mimicked her telephone manner. He went on to say that after the conversation he continued with his work. He found the complainant’s letter of resignation on his desk at 6.00 p.m. that evening.
It was the respondent’s evidence that on the following day he asked his other secretary to type a letter accepting the complainant’s resignation. He did, however, believe at that time that they would be able to overcome the difficulties which had arisen, and for that reason he directed that the letter accepting the resignation not be posted.
On the following Monday the respondent was conducting a clinic in Limerick when he received a phone call from Aut Even Hospital requesting his theatre lists for the following Wednesday. He telephoned his own office and found that the complainant was not at work. The respondent categorically denied having received a phone call from Mr. Millett informing him that the complainant was medically unfit for work. At approximately 11:30 a.m. on that morning the respondent telephoned the complainant at home to find out whether or not she would be coming to work. It was the respondent's recollection that the complainant had told him that she had better things to be doing during her pregnancy and that she then put the phone down. The respondent denied telling the complainant that she should not bother coming to work. The respondent formed the view that the complainant would not be coming back to work and he then sought a replacement. He said that this was organised in some haste because he needed to have a Secretary for the following day.
Having later discussed the matter with his wife, the respondent came to the conclusion that the complainant did not intend to work out her notice, that she had badly let him down and that he should accept her resignation. He said that on Tuesday the 18th February he asked his other Secretary to post the letter accepting the complainant’s resignation, which he had previously prepared.
The respondent gave his version of the events of February, 2003, when Mr. Millett left a letter at his office. A nurse handed it to him when he was in theatre, but he did not open the letter at that time. Later that evening he (the respondent) received a telephone call from Mr. Millett inquiring if he had received the letter. He replied that he had received a letter, which he had not opened, and that he did not realise that it was from the complainant. The respondent told the Court that at the time he received the telephone call he was visiting a Garda Sergeant who he asked to witness the phone call. When Mr. Millett told the respondent that the letter was for the purpose of rescinding his wife’s resignation, he responded that he did not feel disposed to accepting her offer in that regard. He did say, however, that if the complainant spoke to him it might be possible for them to come to some arrangement. A copy of the earlier letter was subsequently hand delivered to the respondent by Mr. Millett the following day.
When asked what he thought was the complainant’s reason for resigning, the respondent told the Court that he had applied for another appointment in Cork and that the complainant had become aware of this. He felt that this was a factor motivating her decision to resign.
Ms. Claire Delaney, who was the respondent’s other secretary at the time material to this case, also gave evidence in relation to the events of the 12th/13th February, 2003. Ms Delaney is still employed by the respondent. It was her recollection that the respondent had come into the office where the complainant and herself worked and asked a question in relation to a particular invoice. Ms. Delaney told the Court that the complainant answered the respondent in a curt and dismissive manner. She said that the respondent had asked her outside and she did not hear the content of their discussions. She assumed, however, that the respondent had spoken to her about the manner in which she had answered his query. She was later told that the complainant had resigned from her employment and she was asked to type a letter of acceptance, which she did on the morning of the 14th February 2003. She did not post the letter at that time but gave it to the respondent. It was the witness' recollection that she subsequently posted the letter on the 18th February 2003. Ms. Delaney’s evidence was that the respondent had not been abusive or aggressive towards the complainant in her experience or in her hearing. In cross-examination, this witness denied having told the complainant that on receipt of her letter of resignation that the respondent had commented that it was for the best and it was about time that she went. The witness also agreed that at the material time, on 12th February she had been in engaged in audio typing and was wearing a headset. She said that she, nonetheless, had a clear recollection of hearing the complainant addressing the respondent in the manner in which she had described.
Conclusions of the Court
The Facts
There is a sharp difference in the evidence given by both the respondent and the complainant in respect of practically all the material facts of this case. It is not necessary for the Court to resolve all of those conflicts and it would be extremely difficult to do so given the divergence of the evidence adduced. However, there are a number of critical matters on which the Court must reach conclusions so as to establish the factual background against which the issues arising in the case must be decided. It is therefore necessary for the Court to carefully evaluate all of the evidence adduced so as to reach findings of fact on these critical points.
It is agreed between the parties that up to the time of the events leading to the termination of the complainant’s employment the relationship between the parties was positive and affable. The complainant contended that the relationship deteriorated after she became pregnant. The respondent denied this. As an example she gave evidence of a particular incident in which she was reprimanded for an error in a patients chart. The complainant said that there had been a wrong date of birth entered on the chart, and that this was a minor error, which could not have justified the reaction of the respondent. For his part, the respondent told the Court that the wrong surgical procedure had been entered on the patients chart, and that when he arrived at the theatre the patient had been prepared for the wrong operation. No corroborative evidence was adduced in support of the respondent’s contention in this regard nor was this incident referred to in his written submission to the Court. The Court finds it strange that the respondent would not have treated such a potentially catastrophic error more seriously. The Court believes that the complainant’s version of this incident is more credible and the Court so finds.
The Court is also satisfied that the complainant became extremely distressed following the events of the 12th/13th February and was diagnosed by her G.P as suffering from increased blood pressure brought about by work related stress. The Court has been unable to obtain a satisfactory explanation as to why a person who was previously happy in her working environment should suddenly find it so unpleasant and distressful as to cause her to believe that she could not continue in the employment without further deleterious effects on her pregnancy and general health. Having considered all of the evidence on this point, the Court has reached the conclusion that the complainant’s version of what occurred is substantially correct and should be preferred. Accordingly, the Court finds as a fact that the respondent addressed the complainant in terms which were offensive and demeaning and that he asserted a right to address her in any fashion he chose in the future.
The Court has also had to resolve the serious conflict of evidence concerning the events of Monday 17th February, 2003, in relation to the complainant’s failure to attend for work on that day. The respondent emphatically denied having received a telephone call from Mr Millett on that morning advising him of the complainant’s medical condition and unfitness for work. Mr Millett produced an itemised telephone bill which showed a telephone call, lasting twenty-two seconds, from his home telephone to the respondents mobile telephone. The conversation which Mr. Millett recalled having with the respondent could well have been completed within that time. The respondent denied having received any such telephone call and was unable to offer any satisfactory explanation on this point beyond saying that the phone may have rang but the call may not have connected. If this was the correct explanation and the call had not properly connected Mr Millett would almost certainly have called back.
The Court is thus satisfied that Mr Millett did inform the respondent on Monday 17th February that the complainant was ill and for that reason she would not be attending for work. Against that background, the respondent’s telephone call to the complainant later that morning served only to put her under additional pressure. The evidence disclosed that the complainant had been reconsidering her position over the weekend and it does not seem credible that she would have made matters worse by telling the respondent, in effect, that she had better things to do than go to work.
With regard to the time at which the respondent formally advised the complainant that her resignation was accepted, the Court considers it unlikely that the letter to this effect which she received on 21st February, 2003, was posted on 18th February as claimed. It is more probable that this letter was sent after the respondent received the complainant’s letter withdrawing her resignation on 19th February. The Court is reinforced in this view by its conclusions in relation to the events of 17th February which are recited above. Based on those conclusions, the respondent’s evidence that he decided to finally accept the complainant’s resignation because she absented herself from work without explanation could not be correct.
Finally, the Court has considered the respondent’s assertion that he believed the complainant’s resignation was motivated by her knowledge that he had applied for a post in another location and that he did not believe that it related to the events of 12th /13th February. The Court cannot accept that assertion. It is satisfied that the respondent was fully aware that the complainant actions were a response to what he had said to her on the 13th February.
The Law Applicable:
The complainant carried the onus of proving the primary facts upon which she relies in advancing her claim of discrimination. If she succeeds in discharging that burden and the facts so proved are regarded by the Court as being of sufficient significance to raise an inference of discrimination, the onus is then on the respondent to prove, as a matter of probability, that his conduct was not motivated by considerations related to the complainant’s pregnancy.
Section 77 of the Act confines the first instance jurisdiction of the Court to situations in which there has been a dismissal on one of the discriminatory grounds. Hence, the complainant must first establish that she was dismissed.
The complainant contends that her resignation was withdrawn before it was accepted by the respondent and, therefore, never took effect. She relies on the general rule in the law of contract that an offer may be withdrawn before it is accepted. It is claimed that in these circumstances the purported acceptance of the complainant’s resignation amounted to a dismissal. The respondent contends that the resignation was accepted before it was withdrawn. He relies on the rule that an offer is accepted at the time a letter of acceptance is posted.
In the alternative, the complainant contends that her resignation was a reasonable response to the misconduct of the respondent and amounted in law to a constructive dismissal.
The Court first considered if the complainant’s apparent resignation ever took effect. A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.
There is, however, a significant body of authority for the proposition that there are exceptions to this general rule and that there are occasions in which an apparently unconditional and unambiguous resignation may be vitiated by the circumstances in which it is proffered. InKwik-Fit (GB) Limited v Linehan [1992] IRLR 156, the following passage appears at paragraph 31:-
- “If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment, personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (being jostled into a decision) and indeed the intellectual makeup of the individual may be relevant (see Barclay [1983] IRLR 313). These we refer to as “special circumstances”. Where special circumstances arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employers risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the “special circumstances” the intention to resign was not the correct interpretation when the facts are judged objectively.”
InMartin v Yeoman Aggregates Ltd [1983] IRLR 48the following finding of the EAT is recited in the headnote:-
- “It is a matter of plain common sense, vital to industrial relations, that either an employer or an employee, should be given an opportunity of recanting from words spoken in the heat of the moment. It could not be accepted, as argued by the appellant, that once clear and unambiguous words are used the contract irreversibly comes to an end so that second thoughts make no difference”.
In her bookDismissal Law in Ireland, Dr Mary Redmond wrote as follows at paragraph [21.24]: -
- “When unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude that the employee has resigned. However, context is everything. A resignation should not be taken at face value where in the circumstances, there were heated exchanges or where the employee was unwell at the time. The intellectual make up of the employee may also be relevant.”
These are persuasive authorities on the law applicable to cases such as this. They also contain sound principles of good employment practice. An employee may make a decision which is not fully informed because they are not in a position to fully evaluate their options or they may act on a misinterpretation of something which is said or done. Where the situation is still retrievable it would be unreasonable for an employee to be denied an opportunity to recant once the true position becomes clear.
This approach appears to have been accepted by the EAT in this jurisdiction in claims of unfair dismissal. InKeane v Western Health Board (UD 940/1988)the claimant was aggrieved at the manner in which she was treated by a more senior employee with whom she was assigned to work. She was unaware of the existence of a procedure by which she could have processed her grievance. The claimant believed that the difficulties and stress which she was experiencing presented her with no alternative but to resign. When she became aware of other industrial relations options she sought to withdraw her resignation.
The Tribunal took the view that the claimant's resignation, viewed against the background in which it was made, could not be considered a fully informed decision or notice by her to terminate her employment. They were of the opinion that the resignation was tainted by reason of the confused state of the claimant’s mind at the time the resignation was proffered. The Tribunal concluded that in the circumstances of the case a reasonable employer would have allowed the claimant to revoke her notice and the respondent’s refusal to consider doing so amounted to a dismissal.
On the basis of these authorities, it seems clear that an employee may withdraw a notice of resignation where special circumstances exist relating to the context in which the decision to resign was taken. The resignation must be withdrawn within a reasonable time which will probably be quite short. The test of reasonableness is an objective one decided in the circumstances of the case (Kwik-Fit (GB) v Linehan). It is also clear from the authorities that where an employee freely and deliberately decides to resign and subsequently changes his or her mind, the employer is under no obligation to accede to a offer to withdraw the resignation or to even to consider such an offer.
In the present case, the complainant resigned following a robust dressing down by the respondent in which, the Court is satisfied, hurtful and demeaning language was used. The complainant was adjusting to the realisation that she was pregnant with twins. She was suffering from stress and was concerned as to the effect which this would have on her pregnancy. All of this must have been obvious to the respondent.
In any event it is clear from the respondent’s own evidence that he did not regard the resignation as a final act. He believed that the position could be reconsidered. Because of this belief he decided not to send a letter accepting the resignation. The respondent told the Court that he decided to accept the resignation after the complainant failed to turn up for work on Monday, 17th February and after she had told him that she would not be working out her notice. The Court rejected the respondent’s evidence on this crucial point. Mr Millitt had telephoned the respondent and told him that the complainant was medically unfit for work. The Court has also accepted the complainant’s evidence that she confirmed this to the respondent when he telephoned her later that morning.
On the facts of this case, the Court is satisfied that, having regard to the complainant’s physical and emotional condition at the material time, her decision to write a letter of resignation was not a fully informed and calculated act and that this was known or ought to have been known to the respondent. The Court is further satisfied that the complainant recanted within a reasonable time after she became capable of fully evaluating her situation. In these circumstances, the refusal of the respondent to allow the complainant to continue in her employment amounted to a dismissal.
Having so decided, the Court does not consider it necessary to address in detail the complainant’s alternative claim that the respondent’s conduct in relation to her constituted a constructive dismissal. Suffice it to say that in a modern employment relationship, employees are entitled to expect that they will be treated with respect during the course of their employment. Employees generally, and pregnant employees in particular, are also entitled to expect that they will not subjected to conduct which exposes them to physical or psychiatric injury including stress related sequelae.
The facts of this case, as found by the Court, indicate that the respondent conducted himself in relation to the complainant in a manner which caused her a significant level of distress and brought her to the reasonable belief that she could not continue in that environment without endangering her emotional and physical well being. The Court is satisfied that these circumstances provided reasonable grounds upon which the complainant would have been entitled to terminate the contract without giving prior notice to the employer. Consequently, the circumstances in which the complainant’s employment came to an end could properly be classified as a dismissal within the meaning of Section 2(1) of the Act.
Determination:
The complainant’s dismissal and the circumstances in which it occurred constitute facts from which discrimination may be inferred. It is thus for the respondent to prove on the balance of probabilities that there has been no infringement of the principle of equal treatment. The respondent has failed to discharge that onus. Accordingly, the complainant is entitled to succeed and the Court finds that she was dismissed by reason of her pregnancy, which dismissal constituted direct discrimination contrary to section 8 of the Act.
The Court is satisfied that the appropriate redress is an award of compensation. It is now well settled that the quantum of an award for discrimination must not only compensate for economic loss but must also be proportionate to the wrong suffered and dissuasive of future infractions. Having regard to all the circumstances of the case, the Court orders the respondent to pay the complainant compensation in the amount of €18,000 for the discrimination which she suffered.
Signed on behalf of the Labour Court
Kevin Duffy
16th February, 2004______________________
CON/MB.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.