EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD336/2014
CLAIM OF:
Tina Worthington - claimant
against
Lynda Elliot, Crescent Clinic – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Revington SC
Members: Mr J. Horan
Ms E. Brezina
heard this claim at Dublin on 14th May 2015
Representation
Claimant: Mr Conor Bowman BL instructed by Heather Celmalis Solicitors,
93 Lower Main Street, Celbridge, Co. Kildare
Respondent: Ms Breda O’Malley of Hayes Solicitors, Lavery House, Earlsfort Terrace, Dublin 2
The determination of the Tribunal is as follows:
Summary of the Evidence
The respondent is a dentist specialising in root canal work. She set up the clinic in 2000. The claimant is a dental nurse. When the claimant started work the respondent gave her the standard contract of employment. The respondent has a practice manual but could not say definitively that she gave the claimant a copy. The claimant told the Tribunal that she received neither of these documents. The claimant worked a 4 day week and had a strong preference for not working evenings.
In May 2013 the respondent started working in another clinic on Thursdays. The claimant was requested to accompany her. This arrangement upset the claimant because Thursday was her day off. The claimant told the Tribunal that the respondent told her that she had to work the extra hours if she wanted to keep her job. The respondent had agreed to review the claimant’s pay but did not pay her more for working on Thursdays. Shortly after this the respondent asked the claimant to vary her hours of work. When the respondent ceased working in the other clinic she requested that the claimant start later and finish later on Tuesdays and Thursdays. The claimant complained to the respondent and said that she was told she would have to work this schedule if she wanted to keep her job.
The respondent said that May 2013 was a business disaster. Fewer dentists referred patients to her clinic and for economic reasons patients were more inclined to have a tooth extracted rather than embark on root canal treatment. To stay in business she worked one day a week in another clinic. That did not work out.
Then as patients were increasingly resistant to taking time off work for dental treatment she wanted to open in the evenings. The respondent did consider the claimant’s pay but she was being well paid and the respondent could not afford to pay her more when her hours of work increased. The respondent knew the claimant did not like to work late and it was her intention that the receptionist would cover her work in the evenings. The respondent did not increase the claimant’s pay when her hours increased because the business could not afford it and she considered that the claimant was being well paid already.
This was a difficult time and on occasion there were raised voices between the parties.
The claimant was very upset by the changes in her working life. In June 2013 she went to her GP in severe pain. She was referred to A&E but nothing showed up following a number of tests. Her GP later considered that the claimant’s illness was related to the stress she was under at work. The first medical certs submitted by the claimant did not mention stress. The claimant’s GP suggested that she not return to that employment.
The respondent wrote a friendly letter to the claimant in August 2013 while she remained on sick leave. The claimant sent the respondent an email on 4th September 2013 resigning her position.
Determination
The Tribunal carefully considered the evidence adduced in this case. The claimant is making the case that she was constructively dismissed from her employment. The Unfair Dismissals Act 1977 defines constructive as:
the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,
In this case it is clear that the relationship between the claimant and the respondent was adversely impacted by the generally bad economic conditions in the country. The claimant was distressed by being required to work additional hours without receiving extra pay while the respondent was fighting to keep her business afloat.
There was a conflict in the evidence regarding the claimant’s contract of employment and whether she was given the Employee Handbook which contained a grievance procedure. These documents could, if used, have smoothed the relationship between the parties.
The Tribunal finds that the claimant did not discharge the onus on her to establish that she was constructively dismissed. When she felt that her position had become untenable she did not inform the respondent directly and neither did she make a formal complaint to her. A formal grievance procedure would have facilitated the claimant in raising her concerns. But the respondent could not be expected to address issues that had not been raised with her. The claim under the Unfair Dismissals Acts 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)