Complainant                 

Respondent

Anonymised Parties

A Care Worker

A Health Service Provider

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00007199-001

27/09/2016

The complainant is a support worker in a very   demanding area of health care and her employment with the respondent (in   fact, its predecessor prior to a reorganisation) commenced in March 2006.

The unit in which she had worked was due to close.   Initially, this was to have been on a temporary basis, although it turned out   to be a long term closure.

The complainant was reassigned to another location.  

Various arrangements were made to accompany the   move including the offer of training in a professional qualification at   degree level for employees who did not have the relevant qualification which   would be funded and facilitated by the respondent. The complainant does not   have the relevant professional qualification.

They were also paid travelling   expenses for travelling to and from work although this arrangement eventually   came to an end, partly as it had become clear that the arrangement was not going   to be a temporary one.

The complainant’s transfer to   the new facility took place on June 17^th 2014 and she began the   course of training shortly after but was not in a position to complete it for   health reasons.

The complaint is one of   constructive dismissal. (Three other complaints were withdrawn at the hearing ADJs 5167, 5194, 5180).

Following her transfer in June   2014 the complainant says that the working environment was a very challenging one. (She had previously   been the victim of an assault in 2011 which resulted in injury and sick   leave).

She was not alone in finding it   so and her trade union made representations to the employer without effecting   any change in the situation.

She was again assaulted on December   5^th 2015 in the course of which she was kicked in the ribs and   went on sick leave until January 20^th 2016.

In April 2016 she became aware   of the planned arrival of a ‘particularly   volatile and aggressive client’ on to her unit. Fearing for her safety   she resigned in circumstances where she says she had no alternative given the   respondent’s failure to alleviate her working conditions.

The respondents were on full   notice of her continuing grievance over her transfer which had been due to be   of a temporary nature only. The respondent was also aware of the toll that   the transfer had taken of her.

In addition, the complainant   was not the only one who was very dissatisfied with the conditions at the new   location.

Their concerns were included in   the representations made by their trade union specifically in an email from   the union representative on June 11^th 2015 in which he stated that;

‘the   vast majority of unit staff do not wish, or feel able to, continue to work in   [the new location].

He requested that;

‘staff should now have the opportunity to   transfer to ..posts outside [the new location] on either a permanent or temporary basis’

and he proceeded to make a   number of suggestions as to how this might be done.

The complainant says she fully   discharged the onus on her to ventilate her grievance before deciding that   she had no alternative but to resign her employment.

It also submitted that here was   no requirement to lodge a formal grievance if an employer has been formally   advised of the existence of a problem. The complainant discharged the   obligation on her to do everything possible to bring the problem to the   attention of the respondent.

The respondent outlined the   complainant’s employment history, including a previous incident of assault in   June 2011 which resulted in a prolonged absence from work. The complainant   did not return to work until February 2012.

She went on pregnancy-related   sick leave in August 2012 and did not return until after the birth of her   child in January 2013 and her maternity leave on July 31^st 2013.

She then went on carer’s leave   from August 31^st to February 6^th 2014.

She took about one month’s   annual leave in February 2014, returning on March 16^th and again   on May 17^th for one week.

She was later absent on sick   leave from June 22^nd 2014 to November 7^th 2014, and   again from late November 2014 until June 26^th 2015.

It was in the course of her   period on carer’s leave that she was advised that the centre in which she   worked was to be closed in May 2014 for redevelopment and that she would be   transferred as outlined above to an identified location. There was an additional   provision that staff transferring there would be considered for alternative   locations if they arose, although this was conditional on a signed agreement   to the effect that they would return to the original location once the   development was concluded.

The complainant withdrew from   the degree course and the respondent had medical certification to the effect   the complainant was suffering from stress attributable to various causes.

In due course as a result of these   background issues it was agreed that she would not be required to undertake   night duty for a period.

In relation to the assault in   December 2015, and subsequent injury the respondent says that it received a   report following a medical consultation on January 7^th 2016 that   the injury sustained by the complainant ‘had   been resolved’ but which noted a number of personal stressors which ‘are gradually resolving’, although   the doctor concluded that the restriction on working nights could be lifted.

The complainant had told the   Occupational Health doctor that she would like to transfer out of the current   unit but, according to the respondent, ‘recognised   that the lack of the appropriate qualification would be an obstacle.’

The complainant returned to   work on January 8^th, 2016, took two days leave on February 5^th   and 6^th, (force majeure), an annual leave day on February 12^th,   she worked a block of night duty in the week of February 15^th   (followed by a normal rostered week off).

She worked on February 29^th   and March 1^st before taking annual leave from March 2^nd   to 31^st inclusive.

The following day, April 1^st   she advised her line manager of her intention to resign, stating that the   work location was ‘not for her’ and   that she wanted to try something different.

This was followed up by an   email on April 4^th from the complainant in which she referred to   the December assault (which had taken place in a different unit to the one to   which she was assigned), and requesting that she be allowed to work out her   notice in the administration building.

While this could not be accommodated   she was allowed to use up leave so that she only had t work a couple of days   before the termination of her employment on April 22^nd 2016.

The respondent says that the   complainant fails to meet either of the ‘entitlement’ or ‘contract’ tests to ground a successful constructive   dismissal case, and that she has failed to identify any action or omission of   the respondent which could represent a significant, or any breach of   contract.

The respondent has not acted   unreasonably towards the complainant. It did not create or tolerate a hostile   working environment, while acknowledging that it is a challenging one. It is   the nature of the work, rather than the nature of the workplace which caused   her to resign.

The respondent went to   considerable lengths to accommodate the complainant by affording her   flexibility in shifts and starting times and night duty.

In a complaint of constructive dismissal the first   critical issue is the behaviour of the employer, although the employee’s   behaviour must also be considered.

Generally this behaviour of the employer is taken to mean   something that is so intolerable as to justify the complainant’s resignation   and constitutes something that represents a repudiation of the contract of   employment.

A contract of employment is like any other contract in   that a party to it may not simply walk away from it for no reason. Most cases   coming before the WRC involve alleged breach of the contract of employment by   an employer in unfair dismissals cases. They, of course, may only do so   lawfully provided the requirements of the Unfair Dismissals Act, 1977 and the   ensuing jurisprudence are complied with.

In respect of constructive dismissal cases the late Dr.   Mary Redmond has observed that;

‘There is something of a   mirror image between constructive dismissal and ordinary dismissal. Just as   an employer for reasons of fairness and natural justice must go through   disciplinary procedures before dismissing, so too an employee should invoke   the employer’s grievance procedures in an effort to resolve his grievance,   The duty is an imperative in employee resignations. Where grievance   procedures exist they should be followed: Conway v Ulster bank Limited. In   Conway the EAT considered that the claimant did not act reasonably in   resigning and without first having ‘substantially utilised the grievance   procedure to attempt to remedy her complaints.

Referred to in Kirwan v   Primark (UD 270/2003) where the EAT   held noted that the claimant said that she was only going through the motions   and therefore there was not a genuine attempt to utilise the grievance   procedures.

Dismissal   Law in Ireland p34

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

Therefore, the burden that falls on an employee is   different in its nature but no less rigorous.

The circumstances of this case are difficult in every   respect.

The working environment is a care facility with, by common   agreement of all the parties, very challenging clients in which the   complainant has been assaulted on two occasions; the first of those in June   2011 resulted in a prolonged period of eight months’ sick leave, and a second   in December 2014 with less serious consequences, but nonetheless an   experience no employee should be required to endure.

It is one of those intrinsically challenging environments   where danger of assault is an ever present hazard, and while this is uncommon   it is not unique in certain acute healthcare settings and the prison service,   for example.

The complainant herself experienced personal difficulties   outside the workplace which are referred to in passing above and are outlined   further below.

It is worth recounting the narrative of events as it   affected the complainant.

The following was her pattern of attendance between June   2011 and her resignation on April 1^st 2015.

(There is no suggestion here, nor was any made by the   respondent that any period of leave was unjustified but it is relevant as   background information).

2011 June 28^th to February 10^th 2012 (Sick leave following assault)

2012 August to July 31^st 2013 (includes maternity leave)

2013 August 31^st to February 6^th 2014 (Carer’s Leave)

She returned on the basis   of medical advice that her working week be reduced to twenty hours

2014 February 17^th to March 16^th   (Annual Leave)

2014 May 17^th   Annual leave; one week

2014 (Late) November to June 2015; sick leave

2014 June 22^nd to November 7^th (sick   leave)

Doctor advised of unresolved personal stressors

2015 December to January 8^th 2016.

Medical report indicating ‘a number of personal stressors   which are resolving’.

In the period between her return on January 8^th   up to the date of her resignation there are, I estimate twelve working weeks.  

The complainant had two days leave on February 5^th   and 6^th, one days leave on February 12^th, one week   rostered off following night duty and four weeks annual leave. This means   that out of the twelve weeks she was at work for just over for just over six   of them.

(I am conscious of the fact that it is somewhat unfair to   include the week off following night duty as this is compensation for hours   worked during the night duty period. However, it is relevant to my assessment   of her exposure to adverse conditions in the workplace in that period).

On the day after her return from this leave she handed in   her notice.

In an assessment made on September 24^th 2014 by   a medical Occupational Health Specialist (OHS) when the complainant was on   sick leave (and submitted on evidence) it was noted that, while the   complainant was absent from work due to a medical condition, and that this   was the primary reason for her absence, that the complainant had admitted to   the doctor to having ‘a significant   amount of stress with regard to her son’s need (sic) and medical conditions’.

(Her son was born on January 30^th 2013).

The OHS recommended that the complainant’s return to work   would be on the basis of a twenty hour week. This was accepted by the   respondent.

On July 3^rd 2015 the OHS again noted some ‘personal issues but that these were   resolving’ and recommended that the complainant be supported ‘by precluding her from working night   duty’ and this was to be on a temporary basis up to September 18^th   when a further review would take place pending her return to full health. The   respondent agreed to this.

The OHS also suggested a community placement but   acknowledged that this was a decision for the IR/HR department.

The next development was the most unfortunate assault on   December 2^nd 2015 resulting in a further period of sick leave and   eventually as outlined above to the resignation of the complainant on April 1^st.

In the course of her period of Carer’s leave (August 2013   to February 2014) she learned that her work location was to close (estimated   to be May 2014) and that she would transfer to a new location; initially it   was intended that this would be temporary, with a view to returning to her   original base. The associated arrangements were the subject of extensive   negotiations with her trade union and she did commence at the new location on   June 17^th 2014.

There are two established tests used in determining   whether a termination falls within the parameters of the Berber criteria   referred t above.

One is the contract test, which goes to whether an   employee can justify terminating the contract on the basis of a fundamental   breach of its terms by the employer and which goes to the root of the   contract.

The respondent relied o the dicta of Lord Denning MR in Western   Excavating (ECC) Ltd v Sharp (1978) 17   where he stated

If   the employer is guilty of conduct which is a significant breach going to the   root of the contract of employment, or which shows that the employer no   longer intends too be bound by one or more of the essential terms of the   contract, then the employee is entitled to treat himself discharged from any   further performance

The respondent submitted that there was no such breach in   this case.

Likewise in respect of the ‘reasonableness test’, where   the employer may have acted within the terms of the contract, but engaged in   conduct that was nonetheless so unreasonable that the employee is entitled to   treat the contract as being at an end the respondent says that the fact sin   this case do not support such a conclusion.

Addressing the same principle the complainant relied on a   decision of the EAT in Joyce v Brothers of Charity Services [2009] ELR 328   where the Tribunal stated that the appropriate question is whether the   employer

‘conducts   himself or his affairs so unreasonably that the employee cannot be fairly be   expected to put up with [it] any longer, [if so] the employee is justified in   leaving’

Two issues now need to be addressed as required by the   Berber test; first the conduct of the employer, and then that of the   employee.

The first question in this context is whether, in general   terms, the respondent tolerated, or failed to rectify conditions in relation   to the employee which justified her breaking the contract.

Bear in mind that in a constructive dismissal case the   onus is on her to prove that it did. In a related point quite a degree of   emphasis was placed on the specific circumstance of the move from the   complainant’s original location to the new one.

In relation to this point I take account of the fact that   the complainant had operated in this ‘line of work’ since 2006 before she   presented for duty at the new location on June 17^th 2014, just   over seven years. She commenced work   in 2006 in what was described as a ‘High Support Unit’ based on the campus of   a psychiatric hospital.

No case was made out by the complainant that the essential   nature of the clients or the work in the new location was fundamentally   different to those with whom she had been dealing prior to the transfer and   since 2006.

As noted above, she had the misfortune to be assaulted by   one of the clients under her care in 2011. It can not for one moment be   accepted that such assaults are in any way to be diminished by describing   them in the colloquial term ‘occupational hazard’, which is often used to do   that i.e. to imply that a particular incident should be tolerated.

And yet, in the more specific Health & Safety sense it   is a hazard of employment in settings where dangerous clients are cared for.   The respondent stated that the contract of employment makes specific   reference to the Health and Safety statement which underlines the requirement   to adhere to relevant policies concerning their own safety and that of   service users. (There is of course no suggestion that the complainant   contributed though any omission on her part or in any way to the assault).

So while there was evidence that the complainant and her   co-workers were very unhappy with conditions at the new location there is no   evidence of opposition to the move there, which strongly suggests that it was   seen as a similar service to the one they left.

I therefore discount the fact of the move to the new   location as a factor in assessing a breach of either of the Berber tests.

Turning to the conditions at the new location the   correspondence from IMPACT on June 11^th 2015 is unequivocal in   stating the opposition of staff to continue working at the new location;

‘It   is clear that the vast majority of unit staff do not wish, or feel able to   continue to work [there].’

Yet, the main thrust of that letter concerns the temporary   nature of the transfer and the failure to honour this and it sought transfer   of its members to community or other posts and identified a number of   possibilities.

In what must be seen as a telling omission there is   nothing in the letter about conditions in the new location about which the   union’s members were complaining. If,   as its author claimed, his members ‘did not feel able to continue’ working there   it is a surprise that, in the course of a two and a half page email he did   not explain why or articulate specific complaints.

It seems as if the primary purpose in writing the letter   was to address the alleged breach of the commitment that this would be a   temporary transfer, which of course is a very valid position in the   circumstances.

However, the complainant relied on this letter in   particular as evidence of her bringing her grievance to the attention of the   respondent.

I find that it is not.

There will be circumstances in which representations made   by a union will meet this objective. This one does not for the reasons just   stated; it contains no details of the grievance on which the complainant now   relies to justify her resignation, such that the respondent could take   corrective action.

More critically, it was written some ten months before she   submitted her resignation and there was no further correspondence from her in   the meantime.

And finally, it does not identify the complainant or   associate her specifically with the complaint.

I note also that her stated reason for resigning in April   2016; her concern about the arrival of a client whom she regarded as a   potential threat was at no time brought to the attention of the respondent.

In her submission she stated that she had ‘a very real   fear of further physical danger to her person in April 2016 with the imminent arrival of that client.

However, I do not think it is possible to rely on an email   written over nine months’ earlier, for the reasons stated above and for the   additional reason that the grounds given for her resignation in April 2016   were not known at the time the email was sent.

She cannot seriously rely on such correspondence as   evidence of putting the respondent on   notice of her grievance, sufficient to ground a complaint of constructive   dismissal.

There is abundant case law on the need to exhaust internal   processes before taking the final step of resignation. Refer to the earlier   extract from Dr Redmond where she says;

Where grievance procedures   exist they should be followed: Conway v Ulster Bank   Limited. In Conway the EAT considered   that the claimant did not act reasonably in resigning and without first   having ‘substantially utilised the grievance procedure to attempt to remedy   her complaints.

Referred to in Kirwan v   Primark (UD 270/2003) where the EAT   held noted that the claimant said that she was only going through the motions   and therefore there was not a genuine attempt to utilise the grievance   procedures.

See also Patricia   Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268

‘The Tribunal finds that the claimant   do not give her employer an opportunity to date with her complaints. The   tribunal further notes that the claimant resigned on obtaining alternative   employment in January 2014. Her resignation was tendered in circumstances   where she failed to any of the several avenues open to her.

Or Zabiello v   Ashgrove Facility Management Ltd UD1106/2008

For a claim of constructive   dismissal to succeed the claimant needs to satisfy the tribunal that her   working conditions were such that she had no choice but to resign. The   tribunal is satisfied that the claimant had difficulties with her line   manager. However for a period of six months she did not attempt to resolve   the issue. When the director learned of the claimants difficulties he made   efforts to resolve the issue. The tribunal is satisfied that the claimant did   not exhaustive the grievance procedure before she resigned. Accordingly   behavioural finds that the claimant was not constructively dismissed

The complainant relied on Harkin v Guinness Storehouse   Ltd (UD 469/2015) where the following appears.

It is well established in law   that the general rule is that a claimant must exhaust the internal process   prior to lodging a claim with any external body. On occasion, and in very   limited circumstances, when a claimant can prove, by the production of   evidence, that the invoking of a grievance process would be a fruitless   exercise the general rule can be dispensed with.

In support of this she argues that ‘the respondents were on full notice of the complainant’s grievance   over her transfer to [the new location].

The first question arising here is whether an essentially   industrial relations dispute over a transfer of work location falls anywhere   within the Berber test requiring as it does that ‘the conduct of the employer complained of must be unreasonable and   without proper cause’.

If it is a   collective dispute the trade union involved appears to have taken no action   beyond writing to the respondent in June 2015.

In any event, the complainant’s ultimate grievance was the   imminent arrival of the allegedly dangerous client about which the respondent   had been told nothing. Even leaving aside the general. Industrial relations   content of the union communication the previous June, and further leaving   aside the argument that it gave no indication of the current complainant’s   grievance (each of which is damaging enough) the fact that no further   complaint of any nature was made by the complainant is fatal to her case.

Further, the sequence of events from her second assault in   December is also telling. Working backwards from the date she submitted her   notice, she had been on a month’s annual leave immediately prior to the   resignation, and as noted above had been at work for only about half that   period.

I do not dispute for one instant that the complainant was   adversely affected by the experience of a second assault, and undoubtedly also   by the combination of the matters complained about by her union, and her own   health and family challenges, which were external to the workplace.

But the respondent had demonstrated a willingness to   accommodate her needs earlier where advised to do so, and as befits an   employer in the health care sector.

I find that she did not avail of the procedures to lodge a   specific grievance as required and that the exception argued in Harkin v   Guinness Storehouse does not apply. I also find that the respondent did   not act in such an unreasonable way as to justify the complainant’a breach of   contract, or act itself in a way which did.  

Accordingly she fails in her complaint of unfair dismissal.

For the reasons stated above I do not uphold   CA-00007199-001 and it is dismissed.