UD1536/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                        CASE NO.

Employee   -    claimant                                                                                       UD1536/2011

Against

Employer         -respondent

Employer         -respondent

Employer         -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr T. Taaffe

Members:        Mr P. Pierce

                        Ms. E. Brezina

heard this claim at Dublin on 4th January 2013

                         and 20th May 2013, 21st May 2013, 22nd May 2013

                         and 12th September 2013, 13th September 2013

Representation:

_______________

Claimant:         Mr. Tom Mallon B.L. instructed by,

                        Ivor Fitzpatrick And Company, Solicitors, 44-45 St Stephen's Green, Dublin 2

Respondent:    Ms. Anne Byrne, IBEC, Confederation House,

84/86 Lower Baggot Street, Dublin 2

Summary of Evidence

In May 2011 an unfair dismissal claim was signed on behalf of the claimant, a doctor, in respect of an employment with the respondent, a group of medical practices, from March 2009 to the end of January 2011.

Under the reasons for the claim it was alleged that, (due to increasing pressure, harassment and stress at work and failure by “the office” to adopt safe and proper procedures and adequate office management) she had found herself in an intolerable working environment which caused her anxiety and stress. She gave evidence of mismanagement of the practice, her complaints made and the failure by the respondent to remedy such mismanagement. A later risk assessment commissioned a result of the claimant’s complaints and resignation confirmed the deficiencies in the practise management. It was contended that the respondent had facilitated harassment and bullying of the claimant by other members of staff.

The claimant was notified of a formal complaint made against her by a part-time practice manager. It transpired that this complaint was made by the part-time practice manager on behalf of another colleague and was subsequently withdrawn by that colleague, as it was made without her knowledge or instruction. The respondent did not speak to the complainant before subjecting the claimant to a meeting, called without notice, which resulted in her resignation.

It was contended that the claimant had been constructively dismissed in that her circumstances had been such that she had been forced to leave her employment.

The respondent’s position was that the claimant had not been constructively dismissed. It was acknowledged that the claimant, during her employment, had made a complaint to the respondent pertaining to alleged bullying and the clinical management of the respondent organisation. Upon being notified of the said complaints, the respondent promptly commenced an investigation. The respondent gave comprehensive evidence rationalising some of the complaints and disputing other complaints made by the claimant.

The claimant’s allegations of bullying were fully and fairly investigated in accordance with internal procedures with the participation of the claimant solicited at all times. The claimant resigned from her employment during the course of these internal investigations. It was argued that she had not exhausted the internal procedures or allowed them to come to a conclusion before taking such a drastic step. The claimant’s allegations regarding bullying were not upheld.

The claimant’s concerns regarding clinical management led to an internal risk analysis of practices, the results of which had been communicated to management and a copy of the report provided to the Tribunal.

It was contended that the respondent had, at all times, acted as a reasonable employer and in accordance with the terms of the claimant’s contract of employment. It was argued that the claimant, in failing to complete the internal procedures, acted unreasonably in her decision to resign and that she had failed to discharge the burden of proof (as established by the Tribunal and by the courts) for a claim of constructive dismissal.

Determination

The Tribunal carefully considered the evidence addressed both verbal and written. It is common case (1) that the claimant was a valued employee which was reflected in discussions between the parties some months prior to her resignation and which resulted in her financial position being significantly and positively addressed by the respondent (2) that following the resignation the respondent (a) carried out an internal investigation, the purpose of which was to investigate the claimant’s allegations of bullying and harassment and (b) commissioned a risk assessment report of their practise by a quasi-independent appointee.

After examining and considering the evidence in respect of alleged bullying and harassment the Tribunal is satisfied that clear tensions presented themselves in the working relationships between the claimant and her immediate work colleagues. While the Tribunal does not attribute sole responsibility for these tensions to any particular employee it is clear that such tensions required to be addressed by the respondent and were not.

The Tribunal has additionally given careful consideration to both the risk assessment report and the relevant evidence presented so as to enable it to address the claimant’s allegations in respect of her employment. It is satisfied that (a) the management of the practice in essence was deficient (b) that the deficiencies present were of a continuing nature and (c) that the claimant made a sustained attempt to carry out her work obligations despite the presence of these difficulties and that this resulted in her being exposed to an increasing work-related stressful environment.

In examining the background to the final meeting between the parties it is clear that the respondent (a) arranged rather than requested it and (b) that its purpose in so doing was so as to enable it to carry out a preliminary investigation of an allegation concerning the claimant which she had not been made aware of.

Having examined the outcome of this final meeting and the actions of the claimant following it, it is evident that her actions were in clear breach of the grievance procedures that were available to her and that were required to be observed by her.

Following careful consideration of the fore-going the Tribunal finds and determines;

1. That the claimant’s action in resigning arose as a direct result of the deficient manner in which the respondent was operating the practice.
2. That her resignation in the circumstances that presented was a proportionate response
3. That while the implementation of such action was in breach of agreed written procedures that this was not of sufficient consequence to invalidate her resignation.
4. That the claimant was therefore constructively and unfairly dismissed.
5. That the claimant made a coherent and sustained attempt to mitigate her loss

The claim under the Unfair Dismissals Acts 1977 to 2007 therefore succeeds and the Tribunal awards the claimant a sum of €35,000.00 as compensation in respect of her unfair dismissal under the Acts.

The Tribunal finally considered the application of the claimant for financial loss arising from the alleged inability of the respondent’s witness to attend the hearing at the prescribed time. It is found that the expectation of the parties was to attend a two day final hearing. The Tribunal does not propose to accede to the application.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)