EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE, UD470/2012
against
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. J. McGovern BL
Members: Mr. R. Prole
Mr. D. Thomas
heard this claim in Dublin on 27 June 2013
Representation:
_______________
Claimant(s):
Respondent(s) :
The determination of the Tribunal was as follows:-
The claimant’s case is one of constructive dismissal in respect of her employment as a dental nurse from November 1998 until late January 2012. It was further alleged that there had been sporadic bullying and intimidation of the claimant during her employment and that no written contact of employment had been given to her.
The claimant gave evidence that she had worked in the dental practice since 1998 and generally had a good working relationship with the respondent. From time to time they disagreed on certain matters but any such disagreements were dealt with in a professional manner. On the 23rd January 2012 it was alleged that the respondent, a dentist, had struck her forcefully on the arm while a dental impression was being made. The claimant was very upset and shocked but the respondent continued his work.
Following the incident she went to reception and told D that the respondent had just hit her and she didn’t know what to do. The claimant went to the doctor next door as she was so shocked but he was not available. She then went to the bathroom and telephoned her solicitor. She remained at work for the afternoon and spoke with G the office manager later on. The claimant remained at work until 6pm as she wanted to speak with the respondent and query why he struck her. He told her that she was not using the machinery correctly and if he did not move her out of the way she could have been badly injured.
The claimant wanted him to admit what he did and apologise. She did not feel he did apologise at any stage or give an adequate explanation as to why the incident happened as it did. The claimant did not return to work the next day and went on two weeks certified sick leave. The claimant did not return to work at any stage and felt that neither the respondent nor anyone in his office approached her to discuss the matter following the incident. She did not return to work as she felt things would not change and that there was bad feeling about the incident.
On cross examination the claimant was asked why she left her job. She felt that the respondent had crossed a line and she could not go back. She reported the incident to the Gardai on 24th January as she considered it an assault. She wanted to go back to work but before that she wanted the respondent to admit what he did and apologise. She believes the position would have been recoverable if he had only done this.
The claimant was further questioned on when she decided she could no longer return to work. Was it on the 23rd January or some later date? The claimant said it wasn’t on the 23rd January as she wanted to talk to her family about the situation. She attended her solicitor within a week which resulted in a letter being sent to the respondent indicating that she had been constructively dismissed.
When asked about the alleged bullying and harassment, the claimant was not able to give details of any specific incidents in the past and confirmed that no particular instances had been reported to the respondent.
The claimant was asked whether or not she was invited to a meeting with AON, the respondents associate in the practice. Counsel for the respondent stated that AON would give evidence that she spoke with the claimant and indicated that an investigation would take place and that her job was still available to her. The claimant indicated that the meeting did take place.
It was put to the claimant that the respondent’s practice manager had attempted to engage with the claimant via text and phone message on the 24th and 25th January concerning her return to work but the claimant refused to engage. A number of text messages were opened to the Tribunal documenting some efforts to contact the claimant and asking her to contact the practice. The claimant, in response, accepted that the efforts were made to contact her but that she could not move on from being punched by the respondent. She was aggrieved that he did not try to contact her.
The claimant was asked whether or not the refusal to reply to the texts or the various voicemails left to her amounted to a rejection of an offer to discuss the matter and/or air a grievance with the practice manager? She admitted at this juncture that, in retrospect, it was a mistake not to accept the invitation to talk and/or avail of a grievance procedure. She further indicated that she probably made the decision not to return to work quite early in the scheme of things – maybe the 24th or 25th January. She was very upset by the whole situation and ultimately wanted the respondent to admit what he did and apologise in person to her
No evidence was given by the respondent and an application to dismiss the claim was made on behalf of the respondent at the end of the claimant’s evidence.
Determination:
Having considered the case of both sides and having heard sworn testimony from the claimant herself, the Tribunal was not satisfied that the claimant had made out a case for constructive dismissal.
It is accepted that the claimant was very upset by the whole situation but the burden of proof rests on her to show that she had no choice but to leave her position with the respondent. She must show the Tribunal that her resignation was not voluntary and that the conduct of her employer was so unreasonable that she had no choice but to resign. Furthermore, it is incumbent on any employee to utilise all internal remedies made available to her unless she can show that the said remedies are unfair. Unfortunately, the Tribunal feels that the claimant did not discharge the burden of proof in this case.
It was admitted by the claimant that she could not move on from the incident and that she rejected offers to engage in discussion or to raise a formal grievance with the respondent. What she really wanted was for the respondent himself to admit what he did and apologise in person to her. It is the claimants own evidence was that she probably acted in haste in not returning to work and this decision was made early in the week following the incident. It was admitted that it was a mistake not to accept an invitation to raise a grievance following phone contact and text messages on 24th and 25th January 2012.In the circumstances, the claimant did not engage with the respondents business partner or the practice manager and did not exhaust all internal remedies before leaving her job and seems to have decided that she was constructively dismissed within a couple of days of 23rd January 2012.
The Tribunal is unanimous in finding that the claimant did not discharge the onus of proof placed upon her to establish a case for constructive dismissal. The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)