Complainant

Respondent

Anonymised Parties

Nurse

Hospital

Representatives

Ciaran O'Mara O'Mara Geraghty McCourt Solicitors

DAC Beachcroft Solicitors

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-00007142-001

22/09/2016

The Complainant was employed from 1^st November 2000 until she terminated her employment on 24^th August 2016. The Complainant was paid €56,791.00 gross per annum and she worked 39 hours a week. The Complainant was provided with a written statement of her Terms and Conditions of Employment, including the Grievance and Disciplinary Procedures of the Respondent.

The Complainant commenced employment at another named Hospital on 25^th August 2016 and she is paid €45,650.00 per annum. The Complainant referred a complaint to the Workplace Relations Commission on 22^nd September 2016 alleging she had been dismissed by reason of constructive dismissal.

The Complainant commenced employment with the Respondent in 2000. The Complainant and her Representative raised issues that have already been the subject of an Adjudication Officers Decision where the Complainant was awarded €10,000.00. This was appealed to the Labour Court who issued their Decision on 26^th July 2016 reducing the award to €1500.00. Therefore as this issue has been already adjudicated on by both the Adjudication Officer and on appeal to the Labour Court I cannot accept evidence in relation to this issue.

The Complainant had been on sick leave in April 2016 but returned to work on 9^th May 2016 and received a letter marked private and confidential that had been delivered by the HR Manager. This letter referred to a complaint by a named employee against the Complainant and indicated that a preliminary hearing would be held to see if the complaint constituted bullying and harassment. She was informed on 24^th May 2016 that the complaint warranted further investigation. The Complainant is of the belief that this complaint was encouraged and contrived by Management in order to unsettle or damage her. The issue was to be addressed through the Dignity at Work Policy and Procedure and if no resolution could be found through medication, a formal investigation would proceed.

Also on 9^th May 2016 the Complainant sought clarification from the Risk Manager concerning a Risk Management Occurrence Form   she had forwarded on 22^nd April 2016 which had been returned to her by HR stating that the issues were proper to be dealt with under the Grievance Procedure. However the Risk Manager refused to accept her complaint.   The Complainant felt she had no option but to seek alternative employment. The Complainant applied to a named Hospital on 17^th May 2016 and to another named Hospital on 25^th May 2016. She accepted an offer from a named Hospital at a position two grades lower than her previous position.

The Complainant argued that while the law supports the view that resignation must not be the first option and that all other reasonable options including the use of the Grievance Procedure they argued that in the current case it was not a reasonable option for the Complainant to lodge a Grievance given her experience in another Grievance Complainant that was the subject of both an Adjudication Officer decision and a Labour Court Decision. The Complainant had no other option but to resign in circumstances where the Respondent was effectively ignoring the concerns and risks she had validly raised.

The Complainant resigned prior to engaging in a scheduled mediation which was an effort to resolve a complaint which was made against her by a colleague in May 2016. The Respondent argued that it was not open to the Complainant to seek to recast the circumstances, including a complaint against her, as constituting grounds for her resignation, when she resigned without having alleged any grievance and without allowing an investigation to take place

The Respondent referred to the matter in the appeal to the Labour Court, however as this complaint has already been adjudicated on by both an Adjudication Officer and on appeal to the Labour Court, I cannot reopen the matter for consideration and the issue has been determined by the Labour Court.

On 22^nd April 2016 a Risk Occurrence Form was received from the Complainant in relation to the conduct of a named Doctor and on 27^th April 2016 the Complainant made allegations concerning the behaviour of two named Doctors. The Complainant was invited by Human Resources to make a formal complaint regarding these two employees. A complaint was received by the Respondent on 5^th May 2016 against the Complainant and an independent member of Management was assigned to conduct the preliminary screening. The Risk Manager who conducted the screening strongly recommended on 24^th May 2016 that the matter be referred to mediation, failing which a formal investigation would be carried out. The Complainant was invited to attend mediation by letter dated 25^th May 2016 and on 1^st June 2016 the Complainant indicated her willingness to engage in mediation.

At the Hearing of the Labour Court Appeal on 19^th July 2016in relation to her previous complaint, the Complainant stated that she would be handing in her notice and taking up a position in another named Hospital. The Complainant informed the Respondent on 21^st July 2016 that she would be unable to attend the medication scheduled for 27^th July 2016. The Complainant resigned by giving notice on 25^th July 2016 and she left the employment on 24^th August 2016.

On the basis of the evidence I find as follows: Constructive Dismissal is defined in Section 1 of the 1977 Act as follows: 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.

There are essentially two tests that an employee can argue in a complaint of constructive dismissal. There must be a significant breach of the contract of employment by the employer, which shows that the employer no longer intends to abide by one or more elements of the contract of employment and that in such circumstances the employee was justified in tendering her resignation. The Complainant has not established there was any breach of contract by the employer.

The second test is that the Complainant must have acted in a reasonable manner in tendering her resignation. The evidence was that the Complainant had lodged complaints against named Doctors of the Respondent. However this was done to the Risk Manager. She was advised by HR that she should lodge a formal grievance against the named Doctors and these would be investigated in accordance with the Grievance Procedure of the Respondent. The Complainant did not lodge a Grievance against the Doctors. Likewise the Complainant resigned prior to the mediation hearing scheduled for 27^th July 2016 in relation to the complaint lodged against her. I find that the Complainant has not acted in a reasonable manner in terminating her employment without lodging any complaint and prior to the mediation meeting arranged in relation to the complaint against her.

In accordance with Section 8 of the Unfair Dismissals Act, 1997 – 2015 and in view of my findings above, I declare the complaint of unfair dismissal is not well founded.

Constructive Dismissal