ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003852

Complaint for Resolution:

Venue: WRC, Tom Johnson House, Haddington Rd, Dublin 4.

Date of Adjudication Hearing: 11/08/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1997, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. 

Background

The Complainant was employed as a Relief Care Assistant from 16^th March 2011 to 7^th February 2016. She was paid €410.58 per hour and has alleged that she worked 42 hours per week. She has claimed that she was constructively dismissed and has sought compensation.

Complainant’s Submission and Presentation:

The Complainant’s hours were rostered in a fair manner up to March 2015. Notwithstanding the fact that she had in effect a “zero hours” contract she worked an average of 42 hours per week. Night shifts were fairly and reasonable distributed between the staff. A new Director of Nursing was appointed in April 2015. The conduct of the Respondent became unreasonable from then on, which led to her constructive dismissal in February 2016. From April 2015 rosters became radically different. Rosters were radically changed unilaterally without consultation to her detriment. From then she got mostly night shifts. She worked 3 nights in April, 4 in June/July and 6 in September /October, which was unreasonable. Her hours of work were reduced at times radically so to 18 per week. The EAT in UD 1530/20014 determined that unilateral rostering on nights was unreasonable notwithstanding that this “had not caused a significant breach of the Claimant’s Contract of Employment”. This caused deterioration in her health and welfare. She lost weight, suffered from insomnia and her appetite was affected. She became depressed. When asked in November 2015 if she was leaving like many of her colleagues she stated that she was. This resulted in pressure being ratcheted up further. She was put back on night duty even though she had just finished six weeks of night duty. She was then told by a colleague in December that she would be rostered on nights until January 2016. Her doctor then asked that she be changed from night to day shifts. She was told that as the rosters had already been done there were no hours for her. She was then given 18 hours per week for two weeks. She was then told that her hours would not be restored until after Christmas despite the use of agency staff. This caused further stress and distress facing Christmas bills and she was the only earner in the home. She was denied three holidays. She became depressed in January 2016 and was not able to go to work. On 7^th February 2016 she resigned her position.

While her contract refers to her as a “backfill of permanent staff” she was ‘de facto‘ a permanent employee. Despite this in 2015 the Respondent used contract staff in preference to her. Because of the loss of hours and the way she was treated she lost trust and confidence in her employer. This impacted negatively on her health and lifestyle. Her conditions were unilaterally altered to her detriment without consultation or agreement, in particular a reduction of hours and night work. The Respondent’s conduct was such that it was reasonable for her to terminate her employment without giving prior notice. She was not aware of the formal grievance procedure. She doesn’t have culpability for not using the procedure. Management should have been aware of the situation and done something about it. She is not a HR expert and is not expected to be one. She was totally dependent on these wages and she was the sole earner. She couldn’t do with the reduction in her wages.

She was unemployed for two weeks and now has found full time work. She is paid €1 less per hour. She is seeking compensation.

Respondent’s Submission and Presentation:

The Complainant’s contract was to provide relief cover and backfill to permanent staff. It states, “there is no entitlement to work or guarantee of work by the Company”. She worked an average of 30 hours per week ranging from 6, 8 to 12 hour shifts. The Respondent tries to facilitate employee’s preferences for day or night shifts. She had been rostered to work night shifts for four weeks from 23^rd November 2015. She submitted a medical certificate stating that she could work day shifts only. The rosters had already been completed so they made best efforts to change her hours and give her the balance of shifts available. This resulted in a reduction of hours for one week only. She then received her normal hours. During January 2016 she was rostered on average 36 hours per week.

There was a reduction in her hours for the end of January/February but this was not unusual given the nature of her work. However following just two weeks where her average working hours reduced, she resigned her position citing a reduction in her working hours as the main reason. She did this without following the company grievance procedure and without giving her line manager an opportunity to rectify the situation.

Her contract clearly states that there were no guarantees of hours. She did not follow the grievance procedure and did not give her employer an opportunity to address or try to find a reasonable solution. She also cited difficulties with her manager as reason for her resignation. However her manager had left some three weeks earlier. There was no constructive dismissal. She resigned to take up an alternative position inn another nursing home. The claim is rejected.

Findings

I note that the Complainant has cited 1) reduction in working hours and 2) unfair treatment by her manager as her reason for resigning her position.

1) Reduction in working hours

I note that the Respondent has supplied working hour records for all of 2015 and up to 7^th February 2016.

I note that she worked an average of 30 hours per week.

I note that the Complainant does not accept this.

I find that once the respondent has summited records the onus switches to the Complainant to disprove the evidence.

I find that the Complainant has been unable to do so.

Therefore I must conclude that there is no evidence to suggest that there was a deliberate reduction in her hours of work.

I accept that there was a reduction when the Respondent switched her to a day shift at the request of her medical adviser.

I find that the Complainant has not established that there was a reduction of working hours.

2) Unfair treatment by her manager

I note that the Complainant did not raise a complaint against her manager.

I note that she did not raise a formal grievance under the grievance procedure.

I note that she accepts that she received the staff handbook.

I note that her manager resigned some three weeks before she did. I also note that she was absent for two other weeks so in total she had no contact with her manager for at least five weeks before she resigned.

I find that she has not established that she had no other option but to resign her position.

I find that in a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The complainant needs to demonstrate that they have no option but to resign. In addition there must have to be something wrong with the employer’s conduct.

In Tierney v DER Ireland Ltd UD866/1999 the EAT stated, “central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.

In the EAT case John Travers v MBNA Ireland Ltd [UD720/2006] it stated, “We find that the claimant did not exhaustthe grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84) the Court stated, i) the onus is on the claimant to prove his case,

ii) the test for the claimant is whether it was reasonable for him to terminate his contract”.

The EAT in Donnegan Vs Co Limerick VEC UD828/2011 stated, “In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace”. Also the respondent’s conduct was “not so unfair or so damaging to the claimant’s rights and entitlements that she hid no option but to resign her position”

I find that the Complainant in this case did not establish that the conduct of the Respondent was such that she had no option but resign her position.

I find that she did not raise a complaint or utilise the company’s grievance procedure.

I find that she did not give her employer an opportunity to address her concerns.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint 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 above stated reasons I have decided that this complaint was not well founded and that it should fail.

Dated:   7^th November 2016