ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001411

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 15/06/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant took early retirement, a decision that was forced on her by management. Over a three year period every effort to have complaints made by the complainant investigated were stymied by management. The complainant was left with no option but to retire on 3 September 2015.

During the three years management failed to complete the investigation of complaints made by the complainant under the Dignity at Work Policy and failed to set time limits for the investigation. In addition management failed to furnish copies of relevant documentation and failed to implement the recommendations of a Rights Commissioner. The complainant was on certified sick leave since November 2012 and without income for two and a half years. The complainant therefore had no option but to tender her resignation and take early retirement.

Respondent’s Submission and Presentation:

In October 2012 the complainant was advised that she was to be moved from a rehabilitation ward to a day-centre. The complainant met with and wrote to the HR Manager expressing concerns in this regard and then raised a grievance against a colleague under the Dignity at Work Policy. On 3 November 2012 the complainant advised that she would move “under protest” but on 5 November 2012 she submitted a medical cert stating that she was unfit for work. Mediation was attempted but was not successful. There were numerous meetings between the complainant, management, the complainant’s union representative and later the complainant’s legal representative. The investigation in respect of the complaint against a colleague did not commence as the person concerned resigned from their position. The complainant remained on sick leave from 5 November 2012 until she retired in September 2015. The complainant could have returned to work at any time and this would have been facilitated, with the respondent retaining their right to deploy / rotate staff as required by the needs of the service. The complainant was not dismissed from her post but retired and received her lump sum and pension in accordance with the rules of the relevant pension scheme.

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.

Issues for Decision:

Whether the conduct of the respondent was such that the complainant was left with no reasonable alternative but to resign.

Legislation involved and requirements of legislation:

The Unfair Dismissals Act, 1977, has amongst the definitions of dismissal the following:

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…

Section 6(7) of the Act states:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so –

(a)   to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…

Decision:

The complainant was employed as a Clinical Nurse Manager by the respondent, commencing employment in 1975. The gross pay was €60,000 - €65,000 per annum. The employment terminated on 3 September 2013.

In October 2012 the complainant was advised by her line manager that she was being reassigned within the hospital to a Day Care Centre with effect from 5 November 2012. She was upset by both the move and the refusal of her line manager to have meaningful discussions with her regarding the matter. She then met with hospital management who informed her that they could not interfere with the line manager’s decision. The complainant then lodged a complaint under the Dignity at Work Policy against her line manager complaining that she had suffered harassment over a period of time. On 3 October 2012 the complainant wrote a note to her line manager stating that she would move locations “under protest” on 5 November. The complainant did not attend work on that day but sent in a medical certificate stating that she was unfit for work.

On 9 November the complainant’s union representative wrote to the respondent requesting that the complainant be allowed to remain in her old position or that she be given time there to train in her successor. On 27 November 2012 the complainant detailed her grievances in relation to her line manager in a letter to the respondent’s ER Manager. Following a screening exercise the complainant met with management and agreed that mediation would be appropriate. The mediation, which took place in February 2013, was not successful. In April 2013, following a report by an Occupational Health (OH) Doctor, the complainant met with management on a couple of occasions in relation to her continued absence. The complainant’s union wrote on her behalf in relation to issues concerning the Dignity at Work and Grievance Procedures. The outcome of the meetings in relation to absence was that the complainant was removed from the sick-pay scheme as the OH Doctor had stated that her absence was “medically unnecessary”. The respondent forwarded terms of reference and the names of investigators to the complainant’s union and these were accepted. There were objections to the terms of reference from the line manager and so the process was delayed. In August 2013 the complainant advised the respondent that she would be represented by her solicitors in future. In October 2013 the line manager resigned and the complainant was advised of this some weeks later by the respondent and told that the Dignity at Work complaint process was therefore closed.

The complainant, through her legal advisors, had already referred issues to the Rights Commissioners Service under the Industrial Relations Act and the Payment of Wages Act. A hearing was held on 7 August 2014. The Rights Commissioner withheld issuing his determination to allow further discussions between the parties. Some discussions took place between the respondent and the complainant’s legal representatives over a period of months but these were inconclusive. The complainant, for her part, states that she was unaware of the contents or extent of these discussions. In April 2015 the complainant herself contacted the Rights Commissioner’s office and, as a result, the Rights Commissioner issued a recommendation on 22 April 2015 to the effect that the parties should commit to a series of meetings to resolve the issues and that the process should conclude within six weeks. A meeting on the matter took place on 15 May 2015 with the complainant in attendance. No conclusion was reached at that meeting. The respondent states that they continued to engage with the complainant’s legal representatives and then set out their position in a letter to the solicitors dated 12 June 2015. In this letter it is stated that the complainant, after receiving medical clearance, “shall take up duty as assigned by the Director of Nursing,(Name of Hospital). We further advise that we are not prepared to accede to (the) claim for reinstatement of the sick pay scheme and accompanying retrospection.” This letter was forwarded to the complainant on 22 June 2015.

The complainant was unhappy with the contents of this letter. She was unable to contact her solicitor but lodged an appeal against the Rights Commissioners recommendation with the Labour Court. This was disallowed as being out of time. The complainant in September 2015 decided that the only option available to her was retirement and she resigned on that basis.

This is a very unfortunate saga. The Rights Commissioner in April 2014 stated that “the original concept of grievance and problems is seated back in the timeframe and was not dealt with expeditiously.” The ensuing passage of time and subsequent events have only exacerbated the position. Looking through the evidence and submissions made by both parties it is hard not to feel that there was a middle ground to be found but that both sides were bound by their perceptions of what the position of the other party was. For instance the respondent stated that they were prepared to consider alternative employment locations for the complainant. The complainant said that she was not aware of this. The complainant stated that she had indicated that she was prepared to work in alternative clinical areas while the respondent, in their final letter, said that their understanding of the complainant’s position was that she would only return to work in her original role and location.

What I have to consider, however, is the specific complaint under the Unfair Dismissals Act, 1977. The concept of constructive dismissal is that, because of the conduct of their employer, an employee is entitled to terminate their employment and that it was reasonable for them to do so.  The complainant must show that the employer was guilty of conduct which amounts to a significant breach going to the root of their contract or show that the employer no longer intends to be bound by one or more of the essential terms of their contract. In this case it was accepted by the complainant that it was the prerogative of management to transfer personnel in order to meet the needs of the service. Her grievance was with the manner and lack of consultation attached to the transfer. Indeed the complainant sent a written note stating that she would transfer under protest on the appointed day. Therefore the decision to transfer and the subsequent defence by the respondent of their right to transfer, by themselves, would not justify resignation.

An important part of the complainant’s case was in relation to the delays in dealing with her grievance and this has already been commented upon. What I have to decide is whether these delays were deliberately orchestrated by the respondent in an unreasonable manner in order to frustrate the operation of the procedures. I note in this regard that it took three letters from the respondent’s union representative over a period of eleven weeks to get a response from the respondent. Other matters, such as the objections raise by the line manager to the terms of reference, were outside of the respondent’s control. I have also examined the delays in relation to the Rights Commissioner’s process that the complainant laid particular emphasis on. That complaint was lodged on 26 November 2013 and as a result very little happened until the hearing on 7 August 2014. The respondent provided copies of emails between themselves and the complainant’s solicitors indicating that there was interaction between those parties over a period of months following the hearing. During that period there was a written request from the complainant’s representatives to the Rights Commissioner to defer for a short time the issuing of a recommendation. The complainant’s evidence was that she was not involved in any meetings during this time and that eventually in April 2015, due to lack of information, she herself contacted the Rights Commissioners Service and requested that a determination should issue.

The finding of the Rights Commissioner (Ref. Nos. r-140253-pw-13 & r-140258-ir-13) is in the form of a recommendation that the parties commit to “gain resolution on these matters” by means of a series of meeting to be concluded within 6 weeks of the date of issue, i.e. 22 April 2015. The complainant attended the meeting in May and the respondent set out their position in their letter of 12 June 2015. The respondent’s position in regard to these matters is that all their communications were directly with the complainant’s legal advisors and that had no control as to when and how this was passed on to the complainant. From the complainant’s own evidence and for whatever reason it would appear that communications between herself and her legal advisors broke down at this stage and, according to the complainant, attempts to contact them were unsuccessful. This is illustrated by the disallowed appeal lodged by the complainant.

While the procedures engaged in by the respondent were extremely slow in their execution and while there were delays at times on their part in providing responses, I do not believe that this indicates that there was a deliberate and unreasonable failure to address the issues raised by the complainant.  

I therefore find that the claim under the Unfair Dismissals Act 1977 fails.

Dated:   20^th September 2016