ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001033

Complaints for Resolution:

Date of Adjudication Hearing: 24/03/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complain and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

 Complainant’s Submission and Presentation:

(All the complaints above are grounded on the same set of facts)

On March 25^th 2014 the Complainant was working as Emergency Room nurse on night duty.

She was five months pregnant at the time.

She was informed by the receptionist that a patient was becoming dissatisfied at the waiting times. She called the patient into the triage room and closed the door. She explained to the patient that he would be seen shortly but he became verbally aggressive and she felt intimidated.

She got up and moved towards the door to leave but he pushed her against the wall and began to use the door as a weapon to open and close against her pregnant belly. The Complainant was in considerable fear and the patient proceeded to walk out into the ER waiting room and to leave the hospital grounds.

No warning system was in place in the ER/triage room to warn her that this was a potentially dangerous patient. The Complainant was not provided with a personal alarm or buzzer so she could not call for help.

The Complainant subsequently sought medical treatment and went on certified sick leave after which time she went on maternity leave and then sixteen weeks unpaid leave. The Complainant was not offered a risk assessment when pregnant and although inquired about one was told by colleagues that it was not a common practice.

The Complainant was severely anxious at returning to her position and felt that it was unsafe to do so and thus felt that she had no choice but to hand in her notice on April 22^nd 2015 and six weeks notice followed.

No alternative working situation was offered to the Claimant and she believed it was too unsafe to return to her previous working environment. The Claimant did not want to leave a job that she very much enjoyed but was in a position that meant she could not return to work in such a dangerous environment in view of the assault that had taken place.

She had applied for posts with her then current employer when on maternity leave but did so on the understanding that there would be less patient contact in these posts.

The complainant said in her own evidence that prior to her return she rang her Nurse Manager to arrange to come to see him but gave no indication of her thinking as to whether or not she would return to work.

When she did meet him she asked for the resignation form needed to serve notice of her intention to leave her employment and inquired about the period of notice. She also told him that she had been extremely happy in the hospital and gave no indication of any unhappiness contributing to her decision to leave.

She said that hospital management had not been supportive although her colleagues had been.

In summary, the complainant says that the actions or omissions of her employer fell short of what is expected from a reasonable employer and that it had a duty to ‘go behind’ her resignation to establish what had given rise to it. Its failure to do so was a breach of the mutual duty of trust and confidence.

It submitted that an active obligation fell on an employer under the Maternity (Protection of Employees) Act to permit a woman to return to work from maternity leave and to conduct a risk assessment which it failed to do.

In respect of the claim under the Health, Safety and Welfare at Work Act the complainant submits that there had been np ‘trigger warning’ system in relation to the possibility of assaults and that this had not been properly provided for in the risk assessment process.

Respondent’s Submission and Presentation:

Regarding the alleged constructive dismissal the respondent submitted that the complainant had not availed of the Grievance Procedure to make known any concern she had and which might have stood in the way of a return to work. The complainant had also applied for two promotional positions both of which had patient contact responsibilities which was submitted as evidence that she was capable to return to this type of ‘frontline’ duty.

It also submitted that it had an obligation to permit a woman returning from maternity leave to return on the same basis she had left.

In his evidence her Nurse Manager recalled meeting the complainant. She had told him in the course of a telephone call that she intended to resign and when she met him she asked about the notice requirement.

In response to a question as to whether he sought to offer alternative employment he said he had no reason to as he was not aware that the incident complained of which had precipitated her sick leave (the assault) was a factor in the complainant’s decision. He said that had he been aware of such a difficulty she would have been found an alternative assignment.

This Nurse Manager had contacted the complainant in the immediate aftermath of the assault but felt he was constrained from doing so thereafter by hospital policies because she was on leave. There is no standard operating procedure for situations where a nurse has been assaulted.

The respondent says that any obligation under the Maternity Protection of Employees Act was met in facilitating the complainant’s return to work om the same basis as she left. Also she had the option to submit a grievance under the normal procedures or otherwise to raise any concerns she had with management.

The respondent says the complaint under the Safety, Health and Welfare at Work Act is outside the time limits set out in the Act. The incident to which this refers took place on March 25^th 2014 and the complaint was lodged on December 11^th 2015.

Conclusions and Findings

I have carefully considered al the written and oral submissions that were laid before me both before, and in the course of the hearing.

I deal first with the complaint that the respondent was the victim of a constructive dismissal.

A constructive dismissal takes place when an employer’s behaviour is so unreasonable that the employee is justified in unilaterally breaking the contract. The burden of proof is set high in such cases for the same reason that it is in unfair dismissals cases of the normal type. A breach of the employment contract sufficient to fall under the Unfair Dismissal Act must be very serious and well justified.

In this case the complainant was on a prolonged absence from her employment; first on sick leave and then on maternity leave. The incident which preceded this happened on March 25^th 2014, after which she went on sick leave. Her maternity leave commenced on August 18^th 2014, which was extended on June 7^th 2015.

She handed in her notice on June 26^th 2015 and this expired on July 20^th according to her resignation form (and although this is not the six weeks referred to in the submissions nothing turns on that for this case).

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally this is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

The Supreme Court has said that ‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’ Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

The complainant’s case rested on inaction on the part of the employer rather than specific acts of unreasonable behaviour and cited various steps it ought to have taken to actively establish the complainant’s state of health.

There are undoubtedly circumstances where omission may form part of unreasonable behaviour by an employer sufficient to ground a successful case but this is not one of them.

The complainant failed to take even elementary steps to let her employer know her continuing fears about returning to her previous position. Had she done so, her Nurse Manager stated in evidence that he would have found her another assignment. The simple fact is that she told no-one in authority or in a position to respond to her concerns of her anxiety. Indeed, she did quite the opposite in communicating to her manager that she seemed quite happy about her decision to leave.

Judged by the Berber test, and the general principles applicable to a constructive dismissal her case falls very far short of what is required both in respect of her employer’s and her own behaviour.

Very little emphasis was laid by the complainant in the course of the hearing on the other two matters. I cannot see how a breach of the Maternity Protection of Employees Act arises in the absence of the complainant bringing the attention of her employer to an issue arising.

I accept the respondent’s submission that the claim under the Safety Health and Welfare at Work Act is ‘out of time’.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the reasons set out above I find that she was not constructively dismissed and I dismiss the complaint under section 8 of the Unfair Dismissals Act.

For the reasons set out above I dismiss the other complaints under Section 28 of the Safety, Health & Welfare at Work Act, 2005 and under Section 30 and 31 of the Maternity Protection Act 1994 also.

Dated:   16^th June 2016