ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003181, 4092, 4288, 4292, 4295, 4299, 4300 and 4303

Complaints for Resolution:

Date of Adjudication Hearing: 27/10/2016

Workplace Relations Commission Adjudication Officer: Enda Murphy

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

In relation to Complaint Reference No. CA-00006066-001, the Commission wrote to the Complainant on 10^th August, 2016 indicating that it was noted she had referred a complaint of discriminatory dismissal under Section 77 of the Employment Equality Act 1998 and a claim of unfair dismissal under the Unfair Dismissals Act 1977. The Complainant was notified in writing by the Commission on 30^th September, 2016 that the complaint under the Employment Equality Act 1998 was deemed to be withdrawn in accordance with Section 101(4A) of the Employment Equality Act 1998 as the Complainant failed to withdraw the claim under the Unfair Dismissals Act 1977. Therefore, I do not have any jurisdiction to inquire into this complaint.

The Complainant has referred a number of complaints to the Director General under both the Unfair Dismissals Act 1977 and the Employment Equality Act 1998 in relation to the alleged dismissal in the present case. The Complainant has identified a number of different individuals and entities as the Respondent in these proceedings including a number of the doctors that are employed by the partnership which employed the Complainant. At the oral hearing of the complaint on 27^th October, 2016 the Complainant’s representative informed the Adjudication Officer that the following complaints were being withdrawn, namely CA-000006341-001, CA-000006343-001, CA-000006344-001, CA-000006346-001, CA-000006349-001 and CA-000006350-001.

The Complainant’s representative confirmed at the oral hearing that the Complainant wished to proceed with Complaint Referral Nos. CA-00004726-001 and CA-00006066-002 both of which relate to complaints under the Unfair Dismissals Act 1977.

Complaint Ref. No. CA-00004726-001

Jurisdictional Issue in relation to Complaint Ref: CA-00004726-001 (ADJ-00003181)

The Respondent raised a preliminary point that the entity against which the Complainant sought relief in relation to this complaint was not the correct legal entity or title of the employer and therefore, it was submitted that the Director General does not have jurisdiction to inquire into this complaint. The Respondent, submitted, therefore, that I do not have jurisdiction to inquire into this complaint on the basis that the incorrect legal entity has been named as the Respondent.

The Complainant did not dispute that the name of the entity in respect of which this complaint was referred was not the correct legal entity of her employer. The Complainant submitted that she was not aware of the correct legal title of her employer on the date that the complaint form was referred to the Workplace Relations Commission (i.e. 22^nd May, 2016). The Complainant submitted that following the referral of this complaint, after having obtained legal advice, she subsequently became aware of the correct legal identity of her employer and resubmitted a further complaint to the Commission under the Unfair Dismissals Act 1977 against this entity on 27^th July, 2016 (i.e. Complaint Ref. No. CA-00006066 refers).

Having regard to the foregoing, I am satisfied that the Complainant has failed to identify the correct legal entity of her employer in relation to this complaint (i.e. Complaint Ref. No. CA-00004726-001). Accordingly, I find that I do not have jurisdiction to investigate this complaint.

Complaint Ref. No. CA-00006066-002

Jurisdictional Issue in relation to Complaint Ref: CA-00006066-002

The Respondent submitted that this complaint has not been referred to the Director General within the six month time limit provided for in Section 8(2) of the Unfair Dismissals Acts and therefore, the Commission does not have jurisdiction to inquire into the complaint. The Respondent also submitted that the Complainant has failed to demonstrate that the failure to refer the complaint within the required time limit was due to reasonable cause and therefore, the Complainant should be precluded from availing of an extension of the time limit within which to refer the complaint.

The Complainant claims that she was constructively dismissed from her employment with the Respondent on 21^st December, 2015 and she accepts that the present complaint was not referred within the six month time limit provided for in the legislation. The Complainant submitted that she referred an initial complaint to the Commission under the Unfair Dismissals Acts on 22^nd May, 2016 (i.e. within the six month time limit) and named the entity which she thought was the correct legal name of her employer. The Complainant submitted that following the referral of the initial complaint and after having obtained legal advice she subsequently became aware of the correct legal identity of her employer and resubmitted a further complaint to the Commission against this entity on 27^th July, 2016. The Complainant claims that none of the employment related documentation she received from the Respondent during her period of employment, including her contract of employment and payslips, contained the name of the correct legal entity of her employer. The Complainant submitted that she referred a fresh complaint to the Commission as soon as she became aware of the correct legal entity of her employer. The Complainant submitted that the failure to refer the complaint against the correct legal entity within the six month time limit was due to reasonable cause and therefore, sought an extension of the time limit in accordance with the provisions of Section 8(2)(b) of the Acts.

In considering this issue, I note that it was not in dispute between the parties that the present complaint was not referred to the Commission within the six month time limit provided for in Section 8(2)(a) of the Unfair Dismissals Acts. The Complainant claims that she was constructively dismissed from her employment on 21^st December, 2015 and the present complaint was referred to the Director General on 27^th July, 2016. Therefore, the issue I must decide in terms of the admissibility or otherwise of the present complaint is whether the Complainant has demonstrated that her failure to refer the complaint within the prescribed time limits was due to reasonable case and accordingly, if she should be afforded an extension of the time limit as provided for in Section 8(2)(b) of the Acts.

The established test for the deciding if an extension of time should be granted for reasonable cause was formulated by the Labour Court in the case of Cementation Shanska –v- Carroll[1] where it was held that: “It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

It was also held be the Labour Court in the case of Salesforce.com –v- Alli Leech[2] when considering the issue of “reasonable cause” that “It clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account.”

In considering this issue, I have taken cognizance of the fact that the Complainant did in fact refer an earlier complaint to the Commission within the prescribed six month time limit in relation to the alleged unfair dismissal (albeit that this complaint identified the incorrect legal entity of her employer). In this regard, I note that the Respondent’s legal representatives issued a written response to the Commission on 16^th June, 2016 in relation to the initial complaint setting out the Respondent’s defence to the alleged constructive dismissal. It is clear that the Respondent in the present proceedings was aware at that juncture of the Complainant’s intention to pursue a claim for unfair dismissal in relation to the circumstances surrounding the termination of her employment.

The Complainant has claimed that the reason for the delay in submitting the present complaint was because she was not aware of the correct legal identity of her employer when submitting the initial complaint on 22^nd May, 2016. I have examined the employment related documentation (including her contract of employment and payslips) submitted by the Complainant and it is clear that the correct legal entity of her employer was not included on this documentation. I accept the Complainant’s evidence that she subsequently obtained legal advice in relation to the matter following the referral of the initial complaint and submitted the present complaint as soon as she became aware of the correct legal identity of her employer.

Having regard to the foregoing, I am satisfied that the Complainant has succeeded in establishing a connection between the factors relied upon by her and the delay in referring the present complaint. In the circumstances, I find that the Complainant has demonstrated that the failure to refer the present complaint within the prescribed time limit was due to reasonable cause and that she is entitled to an extension of the time limit. Accordingly, I find that I have jurisdiction to inquire into this complaint under the Unfair Dismissals Acts.

Complainant’s Submission and Presentation on Substantive Issue:

The Complainant commenced employment with the Respondent as a Receptionist on 7^th October, 2015. She didn’t have any prior experience of working as a Receptionist in a medical clinic. The Complainant submitted that she informed the Office Manager on 1^st December, 2015 about her pregnancy and also informed Dr. A about this on the same date. She claims that Dr. A spoke briefly with her about her role in work and suggested that she complete a medical receptionist course. The following day the Complainant spoke to the Office Manager again and explained that she had researched a receptionist training course which was due to start in January 2016 and enquired from her which areas it was considered she would need training in. The Office Manager took the details of the course and stated she would get back to Complainant regarding this matter.

The Complainant submitted that Dr. A asked to see her in his office on 3^rd December, 2015 and issued her with a copy of her terms and conditions of employment and gave her an appraisal form to complete. The Complainant submitted that she understood from her initial interview for the position that she was due a review of her work performance in April, 2016 following six months of employment so she was surprised when the issue of an appraisal was raised at that juncture. The Complainant returned the appraisal form to Dr. A on 8^th December, 2015 along with a signed copy of her contract of employment. She submitted that Dr. A called her into his office on this date and asked at the outset of the meeting if she wished to have representation. The Complainant declined as she was completely unaware that this meeting was anything other than an informal meeting to discuss her appraisal form. At this meeting Dr. A queried the Complainant’s knowledge of an appointment with someone presenting with chest pain or a child presenting with a temperature and a rash and asked how these matters should be dealt with. The Complainant responded that both would need immediate attention as they could be serious medical conditions. The Complainant submitted that she was not made aware at any stage in any of her training prior to this meeting that immediate appointments were to be given for either of these medical conditions. The Complainant submitted that at the meeting on 8^th December, 2015 Dr. A did not raise any issues about "serious adverse events" which had allegedly occurred in relation to her work nor did he refer to the verbal warning which the Respondent has claimed was given to her by the Office Manager on 16^th November, 2015. The Complainant denies that any verbal or written warnings were ever given to her about her performance during her period of employment with the Respondent.

The Complainant submitted that Dr. A sent her home from work on the morning of 10^th December, 2015 on suspension with pay and handed her a report outlining problems with her work and asked that she read over it and respond by the following morning. The Complainant was completely bewildered by this as she had absolutely no idea what this was about. The Complainant submitted that Dr. A listed a number of issues in his report which he claimed were "adverse events" dating back to 26^th November, 2015. She claims that none of these events were brought to her attention when they allegedly occurred other than an issue with the scanning of documents. The Complainant submitted that Dr. A referred in his report of 9^th December, 2015 to numerous complaints received from patients in relation to her work. However, the Complainant contends that she was never made aware prior to 8^th December, 2015 that any complaints had been made about her from patients or from any other staff members. The Complainant submitted that she was inexperienced in the medical receptionist role upon commencing employment with the Respondent and was given very little training in the position.

The Complainant submitted that she responded to all of Dr. A’s allegations on 12^th December, 2015 by written correspondence and had a further meeting with him on 16^th December, 2015 at which all the items and allegations against her were discussed and she gave a clear and accurate account of her version of the allegations. Dr. A responded by letter to the Complainant on 17^th December, 2015 stating that he was going to carry out further investigations and would keep her on suspension with pay for a further period of time. This letter had strong inferences that the Complainant was lying about all of the incidences that occurred and that she was making serious allegations about other staff members and a patient which was not the case. The Complainant submitted that she merely stated the facts as they occurred and explained exactly what had happened in respect of each allegation that was made against her.

The Complainant submitted that she was almost twelve weeks pregnant at that juncture and her health was seriously affected by the stress from what was going on at work. The Complainant submitted that she felt that she could not carry on in this employment as the staff members (including the Office Manager) involved in many of the issues brought to her attention by Dr. A were all members of the same family and had been working in this office for a considerable period of time. She claims that the manner in which the Respondent carried out the investigation and disciplinary procedures were totally unfair. The Complainant felt that she would not be treated fairly if she returned to work and contends that she had no option but to resign from her employment on 21^st December, 2015.

The Complainant contends that the disciplinary action was invoked by the Respondent on account of her pregnancy and used as a means to force her to terminate her employment. In summary, the Complainant submitted that she was constructively dismissed from her employment by the Respondent for reasons wholly or mainly connected to her pregnancy.

The Complainant referred to the decision of the Adjudication Officer in Case Ref. No. ADJ-0000810 in support of her case.

Respondent’s Submission and Presentation on Substantive Issue:

The Respondent operates an urgent care medical clinic which was established in October, 2014. The Respondent is a partnership operated by Dr. A and Dr. B. The Complainant commenced employment with the Respondent on 7^th October, 2015 as a Receptionist. The Respondent submitted that there were concerns in relation to the Complainant’s performance following repeated mistakes being made on simple tasks which resulted in her being issued with a verbal warning by the Office Manager on 16^th November, 2015. The Complainant was requested to attend an appraisal meeting with Dr. A on 3^rd December, 2015 to address and raise a number of concerns in relation to her performance. The Respondent submitted that the Complainant informed Dr. A at this meeting that she was pregnant and it is denied that she had imparted this information to him on 1^st December, 2015.

The Respondent submitted that the Complainant’s pregnancy was totally irrelevant to the performance related issues which were raised with her at this meeting and during the subsequent disciplinary meetings between the parties. The Respondent submitted that a number of performance related issues had arisen prior to the information regarding the Complainant’s pregnancy being notified to Dr. A, including the following matters:

• A number of patients had not been charged for services provided by the clinic which in turn lead to the Complainant having to ring them and get them back in to pay;
• The Complainant entered payments for clients who had not even attended the clinic which resulted in her being given a verbal warning;
• The Cntomplainant breached the clinic’s urgent care protocols by failing to provide an appointment for an elderly patient who complained of chest pain and was seeking an urgent appointment. On the date in question (i.e. 26^th November, 2015) the Complainant informed the patient that there were no appointments available with Dr. A for a further five days. The elderly patient’s daughter contacted the clinic later that day regarding the matter and after speaking to another member of reception was advised to bring her father straight to the surgery where attended and was immediately transferred to hospital as an emergency. The elderly patient having been transferred to hospital subsequently had three stents inserted as an emergency due to a blockage of coronary vessels. The Respondent submitted that there is no doubt that only had the patient’s daughter persisted the Complainant’s failure to follow simple surgery procedures could have had drastic and potentially fatal consequences for this patient;
• The Complainant’s scanning and filing was errant with some documentation not being scanned and some documentation nearly being shredded or in the process of being shredded;
• The complainant took a wrong telephone number in respect of a patient and subsequently lied not admitting to taking the call;
• The Complainant failed to take a number of payments and refused to take responsibility for this matter notwithstanding, that following an investigation it was found that she had not done so;
• The Complainant breached procedures in relation to the taking of a telephone call from a patient regarding blood results. The Complainant failed to log the call in the nurse’s diary as per normal procedure and subsequently informed a colleague that she had verbally informed Nurse X that the patient had phoned. When asked, Nurse X denied receiving the message from the Complainant. The Complainant then changed her story to state that in fact it was Nurse Y that she had informed about the call. Nurse Y was not the nurse responsible for replying to patient calls on the date in question, and thus should not have been informed, but also denied having been passed the message by the Complainant.  

The Respondent requested the Complainant to attend a performance review meeting on 8^th December, 2015 at which the matters referred to above were discussed with her. The Complainant was offered the opportunity to have a representative or colleague attend the meeting with her but declined this offer. The Respondent submitted that the performance related issues which were raised at the meeting on 8^th December, 2015 were substantive in nature and clearly qualify as exceptional circumstances in particular where a patient’s life was clearly at risk on account of the Complainant’s actions or inaction.

The Respondent subsequently wrote to the Complainant on 9^th December, 2015 and informed her that given the gravity of the issues that had arisen in relation to her performance she was being suspended on full pay pending a further investigation into the matter (this letter was handed to her on 10^th December, 2015). The Complainant was requested to respond to the performance related issues pending a further meeting. The Respondent submitted that the decision to suspend the Complainant was based on the gravity of the issues raised, her failure to follow practice protocols in various aspects of the job description, the seriousness of their nature and the potential risk to human life. A decision was accordingly taken by Dr. A to undertake protective measures to ensure no patient/client was exposed to unacceptable risk pending further investigation into the matter.

The Complainant replied to the Respondent’s letter (dated 9^th December, 2015) in writing on 12^th December, 2015. A further meeting took place between the Respondent and the Complainant to discuss the issues on 16^th December, 2015. The Respondent submitted that the Complainant proceeded to deny every allegation made and conversely blamed other staff members in the clinic claiming they had lied about her performance. The Respondent (Dr. A) wrote to the Complainant on 17^th December, 2015 and informed her that the suspension period would have to be extended as a number of counter allegations which she had made against other staff members within the practice would have to be investigated. The Respondent submitted that the Complainant responded in writing on 21^st December, 2015 and indicated that she was resigning from her position and that she would be bringing a case to the Workplace Relations Commission for constructive dismissal.

The Respondent denies that the Complainant was dismissed, either constructively or otherwise, and it emphatically denies that the disciplinary procedure which was initiated against her was in any way connected or attributable to her pregnancy. The Respondent submitted that the serious nature of performance related allegations made by staff and patients against the Complainant required the initiation of the disciplinary procedures that were invoked. The Respondent submitted that these disciplinary procedures were carried out in accordance with the internal grievance procedures as outlined in the staff handbook which had been furnished to the Complainant. The Respondent contends that it could not be construed in any way that the conduct of the Respondent was so unreasonable in the circumstances that the Complainant was left with no option but to resign from her employment.

Decision:

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:

The issue for decision in the present case is whether or not the Complainant was constructively dismissed from her employment by the Respondent, and if so, whether this dismissal resulted wholly or mainly from her pregnancy.

Legislation involved and requirements of legislation:

Section 1(b) of the Unfair Dismissals Act 1997 provides that:

““dismissal”, in relation to an employee, means—

              (b) 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(2)(f) of the Unfair Dismissals Act 1977 provides that:

              “(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an   employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results          wholly or mainly from one or more of the following:

                            (f) the employee’s pregnancy, attendance at ante-natal classes, giving birth or                                 breastfeeding or any matters connected therewith”.

Section 6(2)(f) of the Unfair Dismissals Act 1977 provides that:

              “(2A)   Sections 3 and 4 of this Act do not apply to a case falling within paragraph (f), (g),(h)      or (i) of subsection (2) of this section and, for the purposes of those paragraphs, ‘employee’              and ‘adopting parent’ include a person who would otherwise be excluded from this Act by      paragraph (a), (c), (f) or (g) of section 2(1) of this Act.”

Conclusions and Findings of the Adjudication Officer:

The material facts in this case, including the fact of dismissal, are disputed between the parties.

The Complainant has claimed that she was constructively dismissed from her employment by the Respondent as a result of her pregnancy. It was accepted that the Complainant commenced employment with the Respondent on 7^th October, 2015 and that her employment terminated on 21^st December, 2015. Therefore, whilst the Complainant did not have the required 52 week’s service she contends that her situation falls into one of the exclusionary categories provided for in section 2 of the Unfair Dismissals Act 1977 wherein she is asserting that the constructive dismissal resulted wholly or mainly from the fact of her pregnancy.

As this complaint is one of constructive dismissal pursuant to Section 1 of the Unfair Dismissals Act 1977 the burden of proof rests with the Complainant.

The Complainant claims that she was subjected to disciplinary action including suspension by the Respondent after she had announced her pregnancy. She claims that the performance related issues which the Respondent relied upon to invoke the disciplinary procedures were not brought to her attention until after she had communicated the fact of her pregnancy to Dr. A. The Complainant claims that the Respondent had inferred as part of its investigation into these performance related issues that she had lied about certain incidents and had made serious allegations against her fellow employees. The Complainant claims that the subsequent investigation and the manner in which the disciplinary procedures were conducted by the Respondent were procedurally unfair. The Complainant contends that she could not continue in her employment as many of her colleagues were members of the same family and that she would not be treated fairly if she returned to work in those circumstances. The Complainant contends that the disciplinary action was invoked by the Respondent on account of her pregnancy and used as a means to force her to terminate her employment. The Complainant claims that she was left with no option but to resign from her employment as her health was suffering and it would have been impossible for her to return to the position in light of the manner in which she had been treated.

The Respondent emphatically denies that the fact of the Complainant’s pregnancy was in any way related or attributable to the disciplinary procedures which were invoked against her. The Respondent contends that serious issues arose in relation to the Complainant’s performance including an incident which could potentially have resulted in fatal consequences for a patient who presented to the clinic with chest pain. The Respondent submitted that the serious nature of these performance related allegations made by staff and patients against the Complainant required the initiation of the disciplinary procedures that were invoked. The Respondent contends that these disciplinary procedures were carried out in a fair manner in accordance with the internal grievance procedures as outlined in the Staff Handbook which had been furnished to the Complainant. The Respondent denies that the Complainant was dismissed, either constructively or otherwise, and claims that she resigned prior to the conclusion of the investigation which was being conducted into this matter.

In considering this issue, I note that the Complainant has claimed that the allegations regarding her poor performance were only raised by the Respondent after she had announced her pregnancy and she claims that the disciplinary procedures which were subsequently invoked against her were directly attributable to her pregnancy. In this regard, there was a dispute between the parties regarding the date upon which the Complainant informed Dr. A of her pregnancy. The Complainant claims that she informed him of this fact on 1^st December, 2015 whereas Dr. A vehemently denies this contention and claims that this information was first brought to his attention by the Complainant at the meeting on 3^rd December, 2015. On balance, and having regard to the evidence adduced, I have found the Respondent’s evidence on this issue to be more compelling and I accept that Dr. A first became aware of the Complainant’s pregnancy during the course of their meeting on 3^rd December, 2015.

I also accept the Respondent’s evidence that issues had arisen in relation to the Complainant’s performance prior to this meeting and that she had been issued with a verbal warning by the Office Manager on 16^th November, 2015. I accept the Respondent’s evidence that the appraisal meeting which took place on 3^rd December, 2015 was convened purely for the purpose of addressing these performance related issues and that this meeting was convened prior to the knowledge of the Complainant’s pregnancy having been made known to Dr. A. The Respondent has adduced credible evidence that there were, in fact, difficulties with the Complainant’s performance and I accept that the alleged incidents which were raised were of sufficient gravity to justify the initiation of the internal disciplinary procedures and the investigation which subsequently ensued. Based on the totality of the evidence adduced, I cannot accept that the initiation of these disciplinary procedures were attributable in any way to the fact of the Complainant’s pregnancy.      

It is clear that the Respondent took the view that a number of the performance related allegations made against the Complainant amounted to gross misconduct, particularly the alleged incident involving the patient with chest pain being refused an urgent appointment, and the decision was taken to suspend her of full pay, in accordance with the internal Grievance Procedures, pending further investigation. It was not in dispute that the Respondent conducted a number of subsequent meetings with the Complainant to discuss the alleged incidents and I am satisfied that the Respondent complied with fair procedures and she was afforded an opportunity to respond to the allegations in a comprehensive manner. I accept the Respondent’s evidence that further issues emerged during the disciplinary process which required investigation and that this process was still ongoing when the Complainant informed the Respondent of her decision to resign on 21^st December, 2015.

It is well established jurisprudence from both the Employment Appeals Tribunal and Labour Court that there are two tests which may be applied when considering a constructive dismissal. The first test is generally referred to as the “contract” test where the employee argues entitlement to terminate the contract. The second or “reasonableness” test applies where the employee asserts that in the circumstances it was reasonable for him or her to terminate the contract without notice.

The Labour Court in the case or An Employer -v- A Worker (Mr. O No. 2)^[3] comprehensively addressed the issue of constructive dismissal and the tests that should be applied under employment legislation. In referring to the “reasonableness test” the Labour Court stated that: “There is, however, the additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducts his or her affairs in relation to the employee, so unreasonably that the employee cannot fairly be expected to put up with it any longer. Thus, an employer's conduct may not amount to a breach of contract but could, none the less, be regarded as so unreasonable as to justify the employee in leaving.”

In the present case, I am satisfied that the "reasonableness" test is the more appropriate. It requires the Complainant to demonstrate that the behaviour of the Respondent was so unreasonable that she could not fairly be expected to put up with it any longer and she was therefore entitled to resign from her employment. The corpus of case law developed on this point also requires the Complainant, before taking the unilateral step of terminating her employment, to give the Respondent the opportunity to address her grievance.  

As I have already found above, I cannot accept that the initiation of the disciplinary procedures by the Respondent was attributable in any way to the fact of the Complainant’s pregnancy but rather I am satisfied that this process was invoked to address serious allegations which arose in relation to her performance. Having regard to the totality of the evidence adduced, I am satisfied that the Complainant resigned from her position of her own volition while the Respondent was in the process of completing its investigation into these matters. In the circumstances, I am not satisfied that the Complainant has established that the conduct of the Respondent towards her in terms of the initiation of the disciplinary procedures and the manner in which the subsequent investigation was conducted was such that it was reasonable for her to terminate her contract of employment.

Accordingly, I find that the Complainant’s claim for constructive unfair dismissal pursuant to the Unfair Dismissals Act 1977 (i.e. CA-00006066-002) is not well founded and accordingly, must fail.

Dated:   2^nd March 2017