UD408/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                            CASE NO.

Bridget Conway                                                                                              UD408/2012

against the recommendation of the Rights Commissioner in the case of:

HSE South Sacred Heart Centre,

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms D. Donovan B.L.

Members:     Mr J. Browne

                    Mr F. Dorgan

heard this appeal at Wexford on 13th November 2013, 11th February 2014

and 12th February 2014.

Representation:

Appellant:

Mr. Padge Reck, Sunrise, Mulgannon, Wexford

Respondent(s) :

             Ms Ann Nee, Employee Relations Manager HSE South,

             Lacken, Dublin Road, Kilkenny

             Nolan Farrell & Goff, Solicitors, Newtown, Waterford

It was decided at the outset that this case should be heard in camera

Claimant’s case:

The claimant worked for the respondent as a care assistant from 1^st September 2005 until 10^th December 2010. It was the claimant’s position that she could no longer continue in her employment having been accused of being a risk to the children in her care by the Local H.R. Officer (H.R.) of the Respondent. This accusation was contained in a letter from H.R. to the claimant dated 20^th May 2010 and stated “Given the risk to clients we have no option but to progress this matter through the Formal Disciplinary Procedure of the HSE”. The claimant spoke to the author of this letter on the 21^st May 2010 and said “OK so I am a risk, I cannot go into work”. Soon after this, on 24^th May 2010, the claimant went on sick leave suffering from work related stress.

While still absent on sick leave a meeting was arranged between H.R. and the claimant together with her Union Representative. This meeting took place on 29^th July 2010 and was scheduled as a disciplinary meeting but was disbanded when the Union Representative objected to the fact that the claimant was unaware of complaints made about her prior to this meeting.

The claimant returned to work on 30^th August 2010 and had to attend weekly meetings with her supervisor. The claimant felt this was unfair as no other member of staff was required to attend such meetings.

On 9^th November 2010 the claimant was requested by H.R. to attend a meeting on 11^th November 2010. The claimant felt that there was a conspiracy against her and declined to attend this meeting opting instead to resign her position.

Respondent’s case:

Witnesses for the respondent told the Tribunal that there were issues with the claimant’s performance dating back as far as 2008. These issues were documented and the claimant would have been aware of them. However no formal warnings were issued to the claimant.

H.R. compiled a list of incidents in which the claimant was allegedly involved and summoned her to a disciplinary meeting on 29^th July 2010. At this meeting the Union Representative objected to the fact that none of these alleged incidents had been flagged to the claimant and that some were going back quite a while. On foot of this H.R. decided “draw a line in the sand” and not to take any disciplinary action on that occasion. However it was also agreed that there would be close supervision of the claimant going forward.

After the claimant returned from sick leave on 30^th August 2010 there continued to be work related problems and it was H.R.’s contention that the claimant could not take criticism and sought to blame others for her shortcomings.

The meeting scheduled for 11^th November 2011 was for the purpose of discussing the claimant’s work related issues and she was invited to be accompanied by her Union Representative. H.R. was already aware that the claimant had indicated to her supervisor that she was resigning. The claimant resigned by letter dated 15^th November 2010.

H.R. did not want the claimant to resign and told the Tribunal that she did all she could to persuade her not to resign.

Determination:

Having carefully considered the evidence adduced at the hearing the Tribunal finds that when the claimant was informed she was a risk to children her position with the respondent became untenable and it was reasonable for her to terminate her employment and to consider herself constructively dismissed.

The Tribunal makes no finding as to whether the respondent was justified in reaching this decision but finds that the respondent should have raised the matter formally with the claimant from the earliest opportunity in order to allow the claimant address each incident closer to the time of its occurrence. If an employee’s competence is in issue an unequivocal warning should be given.   In giving the warning, the following principles might be borne in mind:-

• The warning must be clear

• It must be clear as to why the warning is being administered.

• It must be clear as to how the employee’s performance is expected to improve.

• Importantly, it must be made absolutely clear what the consequences of failure to improve will be.

It was not until what was referred to in the respondent’s own documentation as the “formal disciplinary procedure” that the claimant became aware that various incidents, some of which had occurred in or about nine months previously and some as far back as 2006 and 2008, were being treated as actionable incompetence albeit that she may have been aware of the incidents.

The Tribunal further finds that the respondent did not fully invoke the disciplinary procedure thereby denying the claimant the benefits afforded by such procedure.   Rather the respondent utilised a mezzanine approach in the invocation of its disciplinary procedure which the Tribunal finds unacceptable and unsatisfactory.  

On the particular facts of this case the Tribunal finds that the constructive dismissal of the claimant was unfair and accordingly the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation in the amount of €12,500.00. The Tribunal was not satisfied at the claimant’s effort to mitigate her losses and notes that whereas it may have been difficult for the claimant to secure alternative employment this did not exempt her from the necessity to seek to mitigate her losses.

The Tribunal does not find that the claimant was victimised, bullied or had her dignity at work affronted by the respondent.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)