ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004959
Complaint for Resolution:
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-00007032-001 | 15th September 2016. |
Date of Adjudication Hearing: 11th January 2017
Workplace Relations Commission Adjudication Officer: Seán Reilly
Procedure:
In accordance with Section 80 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act 1977 and 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 from the Respondent from 10th December 2010 to 5th January 2016 and her weekly rate of pay was €1,090.28c. The Complainant was submitting that she had been constructively dismissed by the Respondent and the Respondent was denying the complainant.
Preliminary Issue:
A preliminary issue arose in relation to the time limits for the presentation of complaints as laid down in the Unfair Dismissals Act 1977 and the Workplace Relations Act 2015.
Section 8(2) of the Unfair Dismissals Act 1977 and Section 41(6) of the Workplace Relations Act 2015 provides that a complaint must be presented a complaint to the WRC within 6 months of the alleged breach, in this case the termination of the employment of the Complainant. However in this case the Complainant’s employment terminated on 5th January 2016, but her complaint was only presented to the WRC on 15th September 2016 and this is more than 6 months after the employment. However the Complainant made submissions that in accordance with Section 41(8) of the Workplace Relations Act her failure to present the complaint within that period was due to reasonable cause that justified extending that 6 month period by a further 6 months.
The Complainant said she was aware that she had missed the 6 month deadline for submitting a complaint. She said they are various reasons why she missed this deadline, including:
That she has been suffering from stress for the last 5 years and she believes this had drained all her physical and mental resources and she did not have the energy or mental capacity to put together all the information that she required to make this complaint
That her Mother was diagnosed with 2 forms of cancer last year and had to undergo surgery and treatment for that. Her Mother also has other chronic illness including diabetes, hypertension, arthritis, psoriasis, diverticulitis, cellulitis and kidney function problems. Furthermore, her mobility has decreased significantly since she was diagnosed with cancer and her care needs have obviously increased. The Complainant had to spend a lot more time with her parents to provide them with physical, practical and emotional support.
That her daughter gave birth to her second grandson on 20th January 2016. He was born with a congenital heart problem that was not picked up during pregnancy. The child required surgery that could not be performed anywhere in Northern Ireland and he had to go Crumlin for it. It was postponed twice before he eventually was operated on a few months ago and his condition has been reduced from severe to mild/moderate following the surgery and he is making good progress; however he will remain under cardiology for the rest of his life.
She was not sure how to make a complaint given that she lives in Northern Ireland and worked in the Republic of Ireland
She was not sure when the time limits started, would it be from when she left her job or from when she got an outcome from her grievance complaint.
The Complainant said that for the foregoing reasons it was not feasible for her to present her complaint until she did so and she said that the foregoing constituted reasonable cause that caused the failure to present the complaint within the normal 6 month period and that justified extending that period.
The Respondent submitted the following in relation to the application by the Complainant for an extension to the normal 6 month time limit for the presentation of the complaint.
The Respondent said that the Complainant has set out a number of explanations as to why she missed the 6 month deadline for making a complaint.
First she refers to having suffered from stress for over 5 years, stating that this had drained her of all her physical and mental resources with the result that she did not have the required energy and mental capacity to make a complaint. Second she refers to her Mother having been diagnosed with 2 forms of cancer in 2015 and having to undergo treatment for this. The Complainant states that her Mother’s illness meant that she has had to spend more time with her parents to provide them with physical, practical and emotional support. Third, she refers to her grandson, who was born on 20th January 2016 with a congenital heart problem that required surgical treatment. Fourth she states she was not sure how to make a complaint as she is resident in Northern Ireland although she worked for the Respondent in the Republic of Ireland. Fifth she states that she was/is unsure about the date from which the time limits starts to run, whether it was from the date on which she left her job or the date on which she received an outcome to her grievance.
The Respondent submitted that the reasons offered by the Complainant as an explanation as to why she failed to make her complainant within the statutory time limit do not constitute reasonable cause, either taken individually or collectively and therefore the Respondent submitted that the complaint is out of time and should not be entertained by the Adjudication Officer.
The Respondent pointed out that the Complainant was in a position to be able to work in her new job in the 6 month period after she terminated her employment with them and that accordingly she would also be in a position to submit her complaint.
Summary of Complainant’s Case:
I commenced work as a Child Protection Social Worker in a named Area with the Respondent on 10th December 2010. At this point in my career I had 12 years post qualifying experience as a Social Worker. I realised after a few months that I wasn't suited to this type of work as I was struggling to deal with the emotional impact that this job had on me. I spoke to my named acting team leader, regarding the possibility of getting a transfer to another post. Following consultation with the named Principal Social Worker, she informed me that there was no formal transfer policy and advised me to apply to the next Respondent recruitment panel. I applied to this panel on 12/3/11 and was not interviewed as I was informed by the named Campaign Manager on 14/3/11 that I wasn't eligible as I was already in a permanent position and that I could not use the recruitment panel as a vehicle for transfer. I was annoyed at this as I was aware that other permanent social workers in my Area were invited to interview for this supplementary recruitment panel so I subsequently appealed this decision without any success. I spoke to my acting team leader again and she suggested that I should contact the Principal for Adult Services to express an interest in transferring. She advised that although there was no formal transfer procedure that there were informal local arrangements for transferring employees between departments. I made contact with then PSW of Adult Services, in my Area on 29/3/11 and outlined my circumstances and expressed an interest in transferring to Adult Services. I continued to contact the PSW over the coming months as I was becoming very stressed and overwhelmed with how the job was impacting on me. She subsequently offered me a post in Adult Services (Mental Health Team]) in my Area in August 2012. This was one of four new posts that were funded in Mental Health in my Area. However my Principal Social Worker would not approve the transfer as he stated that there was no guarantee that my post would be backfilled so I couldn't take up this post. He stated that if I was not happy with his decision that I should submit a grievance which I did on 24th August 2011. I was subsequently offered a second transfer opportunity to Adult Services (Stroke Rehabilitation Team, in my Area) in October 2012 and my PSW wouldn't approve this either. I wasn't happy with this decision so I added this as a complaint into my original grievance which I submitted in August 2012. The Principal Social Worker in my Area was acting up for the Child Care Manager when my grievance was submitted and he agreed to deal with the grievance in her absence due to annual leave. However, despite numerous informal discussions, telephone calls and e-mails, my grievance has yet to be dealt with over 4 years later. He did not follow any of the procedures within the grievance policy and has not provided me with the outcome of my grievance either verbally or in writing to date. Therefore I believe that he has breached the HSE's grievance policy and procedure. I continued to struggle with stress and the emotional impact of the work of child protection. The job was impacting adversely on my overall emotional/mental wellbeing. I became quite tearful a lot of the time and often ended up in tears in front of my colleagues, Team Leader, Child in Care Reviewer and one of the principal social workers). My job was also affecting my sleeping pattern and my home life. I subsequently called to the Occupational Health team and requested a self-referral; however I was advised that if the referral was related to work that I needed a referral from my team leader. I subsequently e-mailed my Team Leader at the time (28/11/12) and asked him to refer me to Occupational Health. I had a discussion with him about this and the reasons for the referral and he agreed to do this. However, he forgot about it and didn't make the referral until February 2013. In March 2013, Occupational Health made a recommendation that I should get transferred out of Child Protection but no steps were taken to follow up on this recommendation by July 2013 when I went off on sick leave for 6 months due to work related stress. While I was off sick my team leader did not follow the Respondent’s Preventing and Managing Stress Policy. The policy states that if a medical certificate cites stress as a reason for absence that the employer needs to respond in an appropriate, sensitive and supportive manner; keep in regular contact and agree how best to do this. It also states that the employer needs to identify the source of stress and find an acceptable solution. It also states that following a risk assessment, it should consider what steps that can reasonably be taken to prevent or reduce the stress from recurring. It also states that the employer needs to make a referral to OH and plan the employee's return to work. Prior to going off sick, I repeatedly told my manager about the stress that I was under and that I wasn't coping. No plan was put in place to manage that stress before I went off. While I was off, my Manager did not keep in contact with me on a regular basis, in fact he only contacted me once regarding a case and during this conversation he asked me how I was and when I would be back. He did not ask about the source of my stress or discuss finding an acceptable solution. Furthermore I have no knowledge of risk assessment being carried out or any plan being put in place to prevent or reduce the stress from recurring. There was no need for my Team Leader to refer me to OH as I was already attending since March 2013. A case conference was convened which was attended by my Principal Social Worker (PSW) at the time, while I was off sick a number of months (unsure of date). The OH consultant asked what progress has been made with regards to the recommendation that she made in March 2013 regarding a transfer out of Child Protection. The reply was that no progress had been made as there were no jobs available. However the PSW did not provide any evidence of any efforts he had made within his own Department or outside departments to arrive at this conclusion. The OH Consultant asked what could be done to get me back to work and she suggested a change in role, caseload reduction, reduction in hours etc. even on a temporary basis. The PSW stated that he couldn't offer any of these as he needed his social workers to fulfil their statutory duties and that he had enough family support workers and didn't need anymore. The OH Consultant informed him that some nurses come back to work after long term sick doing other roles such as office work or working in labs for a short time to phase them back into their own roles initially but the PSWE stated he couldn't offer anything like that. The only action point that was agreed at this meeting was that I should attend Cognitive Behavioural Therapy. I agreed to attend this but had concerns that there were no changes being made to my work or role and that this would ultimately lead to me being stressed again as soon as I would return. I returned to work on 13/1/14 and when I returned I had a five minute conversation with my Team Leader, before he went to Court. I didn't get much of an opportunity to talk to him about my concerns and about the support that I would need to ensure that I wouldn't end up stressed again and feeling unable to cope. Furthermore, when I returned I had no desk and no computer and this added further to my stress. It was a number of weeks before this matter was resolved. My Team Leader and Principal Social Worker met with me on 21/1/14 and discussed work that I may be interested in doing in the team. There were a number of alleged sexual perpetrators who required assessment and as I had the training and experience of doing this work in a previous job they asked if I would consider it as an option given that I was struggling with the child protection work. I agreed to do this alongside carrying a child protection caseload if they would fund refresher training for the Harris (Stable and Acute Assessment training). Professionals who work with sex offenders are required to update this training on a yearly basis and I hadn't had the training since my previous job which I left in 2010. He asked me to try to source the training and he would try to source the funding. I subsequently sourced the training and requested funding but was turned down. I was already working in partnership with COSC (who assess sexual offenders) at this time and this caused me further stress to find out that I wouldn't be able to avail of refresher training. I felt that this work was too specialised and that it was bad practice to carry out these types of assessments without having the updated refresher training. I continued to work in my role and shortly after I returned to work I felt stressed and overwhelmed again. Although I was attending CBT, it didn't equip me with any skills or strategies to help deal with the day to day stress of the job and the emotional impact it had on me. Furthermore, I didn't have much support from my team leader with regards to stress. Supervision wasn't regular and when it did occur, it focused more on case management than on the supportive element of supervision. My Team Leader seemed uncomfortable when I got upset and didn't know how to respond. I began to feel overwhelmed and stuck in my job with no option out. I had tried applying for other jobs in Northern Ireland but the application forms asked how many days I had been off work sick in the past two years. I felt that my sick record was preventing me from securing alternative job opportunities. I applied for a few posts within the Respondent as they didn't ask the same question about sick leave. I applied for a social work post in Adult Services and I applied for a team leader post in Mental Health. I am on both of these panels but unfortunately few posts have come up in my Area since I applied in 2013/2014. I also sent an e-mail to a named person in the Respondent on 8/8/14 requesting to have my name placed on the new National Transfer procedure. Furthermore, I requested to be considered for internal transfers to other departments in my Area and one to child protection in my Area. Although I wanted to be transferred completely out of child protection I applied for the one in my area (9/5/14) to be nearer my mother who lives in Northern Ireland as she had been unwell for some time. I also contacted the, HR Manager in my Area on a few occasions (15/10/14 and other dates) to let him know how stressed I was feeling and that I was not coping well with my job. I asked him to keep me in mind if any transfer opportunities became available in my Area. Unfortunately I did not secure a transfer and was very disheartened when two of my colleagues got transferred out of child protection. One got transferred to fostering and she didn't have an OH recommendation for a transfer out of child protection... The other colleague had a recommendation by OH to be transferred out but her recommendation was only made a few months prior to her transfer. She was transferred to a new post that was created for her and wasn't opened up to anyone else. This colleague had previously been transferred in and out of a number of jobs in my Area including residential services and 16+ Aftercare team. Over the coming months my stress levels increased. One case in particular caused me a lot of stress as the family blamed me for their children being in care. Both parents had a history or alcohol/drugs misuse and the father had a history of violence and aggression. The couple were verbally abusive to me and were very intimidating. They also hinted that they knew where I lived; they made their strong feelings about me known to their family, my colleagues who helped with access etc. and other professionals at meetings. On the 25/9/14 they followed me home to Northern Ireland. They were driving close to me, pulling on the handbrake, stopping sharply and generally trying to intimidate me with their driving. I felt very vulnerable and very unsafe particularly as the father kept a machete at the door of his caravan and often turned up for access under the influence of substances. The father was also threatening and abusive to his partner's family and stalking them at home and work. As a result I was very stressed and worried about my own safety and the safety of my family. I requested to be taken off the case in September 2014 but was refused. I sent numerous e-mails to my Team Leader, Principal Social Worker and Child Care Manager highlighting the stress that this case was causing me and indicating to them that I felt unsafe in work as also at home. I was not allowed to come off this case as management felt that it was only passing the problem to another social worker. I didn't agree with this as I felt that other social workers who weren't under the same level of stress as I was, could deal with the case better and also the clients didn't know where the other social workers lived so therefore they weren't at the same risk of harm as I perceived myself and my family to be. . My Team Leader subsequently formulated a protection plan which included the following points: 1) Me to report the matter to the Gardaí, 2) My PSW to hold a strategy meeting with the Gardaí, 3) Me not be alone with either parent, 4) Me to have contact number for the Gardaí and PSNI. This plan did nothing to ensure my safety as I ended up being on my own with the parents on a few occasions after my Team Leader organised a Meeting with them in the Family Enrichment Centre, in a named location and he turned up 20 minutes late for the Meeting. On other occasions when access was planned the parents may have arrived earlier than my colleague who would have being supervising the access with myself. Furthermore, the plan didn't do anything to protect me from this couple when I was at home in the evenings or weekends. I arranged to meet with a named Garda on 12/11/14 in a local Garda Station but the appointment was cancelled as she was off sick. I subsequently made a statement to her on 20/11/14. On 27/12/14 I was at home with my daughter…. My husband was out and someone came up my drive and kicked my front door so hard that the letter box fell off. The person also rattled the window and ran off. I was absolutely terrified and immediately thought it may have been this couple as I had lived in this house for 12 years and nothing like that ever happened previously. I didn't feel safe in my own home and had to get my husband to return home. When I returned to work in January 2015 I discovered that this couple were in my home area over the Christmas period and their car broke down and they had to leave it there with the children's presents. As a result I feared even more that it was this couple who kicked my door and rattled my window. I was afraid to be at home on my own and had to spend a weekend elsewhere with my parents when my husband went on a stag party. I continued to ask to come off the case and there was an agreement in principle that I would come off this case at an Occupational Health Conference on 13/1/15. I was extremely relieved with this recommendation but unfortunately I continued to have to work this case for a further 4 months until the case was split and transferred to two of my colleagues at the end of April 2015. This case caused me significant stress and worry and I felt unsafe the whole time that I was working the case. I don't believe that the Respondent acknowledged the stress that this case caused me despite numerous conversation and emails. Furthermore I don’t believe that they did enough to prevent or manage my stress. I felt completely unsupported and undervalued and felt stuck with no way out. I highlighted to management from 3 months of starting the job how stressed I was and how this work impacted on me emotionally. I tried to secure an internal transfer and was offered 2 posts which I was not allowed to take up. I applied to the supplementary panel but was not invited for interview even though two other colleagues who were in permanent posts were invited for interviews. I applied for other jobs within the Respondent and I am currently on two panels. I self referred to OH and continued to avail of support from OH until I left the employment. I acknowledged my stress and requested help with at least one particular case as outlined above and didn't get taken off the case for almost 7 months after I was followed home. As a result I didn't feel safe at work or home. My health began to suffer and I continued to experience sleeping problems and was waking up in the middle of the night with pains in my chest. My doctor confirmed that the pains weren't organic and that they were more likely to be caused by stress. I was subsequently offered my current post in Adult Learning Disabilities in September 2015 but while I wanted to get out of child protection and take up a new post, this post would involve me taking a significant drop in pay. I was earning €57,000 p.a with the Respondent and the salary for the new post was £30,000. Due to financial commitments I couldn't afford to take up this post but I felt that I had no other option. I subsequently resigned from my job with the Respondent in December 2015 and took up my new post in Northern Ireland on 18/1/16. Since I have taken up my new job my stress levels have decreased significantly. However, I am living on a wage now that is less than I earned 10 years ago and amounts to approximately £18,000 per year less than I was earning whilst I was employed by the Respondent I believe that policies weren't followed to support me to manage my stress or to secure a transfer out of child protection including the grievance policy and the managing absence/ stress management policies . I also feel that I didn't get enough of support to prevent or manage stress and as result I felt unsafe at work and felt I had no option than to leave my post and take up a post which pays a lot less wages/salary. . Based on the foregoing the Complainant sought a finding and decision that she was constructively dismissed and she sought that she be awarded redress in the form of compensation as provided for in Section 7 of the Unfair Dismissals Act 1977. |
Summary of Respondent’s Position:
The Respondent said that the Complainant is a professionally qualified social worker who took up employment with them in their Children and Family Services on 10th December 2010.
The Respondent said it is important to note that the Complainant applied for and was appointed to the position of Child Protection Social Worker. The Respondent said in her submission the Complainant states that after a few months she realised that she was not suited to the type of work as she was struggling to deal with the emotional impact that the job had on her. The Respondent said that in early 2011 the Complainant looked into the possibility of transferring out of Child Protection.
The Respondent said that on 12th March 2011 the Complainant applied to their National Recruitment Service (NRS); however she was not eligible to go on the panel because she held a permanent post and the (NRS) did not allow persons who held permanent posts to be placed on the Panel. The Complainant appealed this decision, but her appeal was unsuccessful.
On 29th March 2011, the Complainant contacted the named Principal Social Worker (PSW) of Adult Services in the area she worked in expressing an interest in transferring into Adult Services. She was offered a post in Adult Services in her area in August 2012. Her named PSW did not approve the transfer and the reason for this refusal was that, with the moratorium on recruitment, if the Complainant left her position to take up a position in Adult Services, the vacated child care social worker post would not be backfilled. Her PSW explained this to the Complainant. He also informed her that if she was not happy with his decision she should submit a grievance, which she did on 24th August 2012.
The Respondent said that the Complainant states in her written submission stated that she was offered a second transfer opportunity to Adult Service/Rehabilitation Team in her area in October 2012. Her PSW did not agree to this transfer for the same reason as the previous one: namely that he would be unable to backfill her job.
The Complainant was referred to Occupational Health (OH) by her Team Leader in February 2013 and was assessed by a named OH Consultant on 27th March 2013.
The Respondent said that the Complainant at various times in in written submissions and her correspondence to the OH Consultant having made a recommendation that she be transferred out of Child Protection. The Respondent said that in fact the OH Consultant stated under the comments section that she “would be pleased if you could actively pursue a swap if any new entrants in any other services wish to move into the child protection area.”
The Respondent said the Complainant was assessed again by OH on 27th May 2013. The same OH Consultant recommended a Case Conference be arranged with the Complainant her Line Manager and HR. The Respondent said that for the reasons set out in the foregoing, they were not in a position to transfer the Complainant out of Child Protection and this was told to her at the Case Conference.
The Complainant was again assessed by OH 26th November 2013. The same OH Consultant recommended that the Complainant’s workload be limited for the first 6 weeks of her return to work. The OH Consultant further stated that the Complainant “would like if you would explore a transfer from the Child Protection area to another area.” Her PSW met with the Complainant on 21st January 2014 and offered to reassign her to work of carrying out assessments of adults in respect of whom allegations of sexual abuse had been made as part of a return to work package. The Respondent said that for this time, no child protection cases were allocated to the Complainant.
The Complainant was again assessed by OH on 18th February 2014, 13th September 2014 and 9th April 2014. An Occupational Health Case Conference Meeting was held on 13th January 2015. This Meeting was attended by the Complainant, the OH Consultant, the named PSW and the named Regional HR Manager. At this Meeting the possibility of the Complainant transferring out of Child Protection was discussed. The Respondent said that however if was not facilitated at this time. The Respondent said that it was acknowledged by the OH Consultant at this Meeting that while alternative options had been explored, nothing was available at that time.
The Respondent said that the Complainant lodged a grievance on 24th August 2012. As the Complaint’s named Line Manager was not available the grievance was dealt with by another named PSW. The Respondent said that the formal decision in relation to the grievance was set out in letter to the Complainant dated 4th April 2013. The Respondent said that although it is acknowledged that there is no record of the Complainant having received this letter (the Complainant emphatically denied that she had ever received this letter and of ever having seen it before the Hearing), the outcome of the grievance was communicated to the Complainant at a Meeting in April 2013 (this too was emphatically denied by the Complainant). The Respondent said it is important to note that the email exchange between the Complainant and the PSW dealing with the grievance ends in or around 15th March 2013: in an email exchange on that date in response to a question from the Complainant as to whether there was any progress in relation to the grievance the PSW stated that progress was being made and that he would be in a position “next week or the week after to have a formal reply” to the Complainant.
The Respondent said that complaint was not upheld. The Respondent referred to the contents of the letter dated 4th April 2013: (however as I am completely satisfied this letter was not received by the Complainant it would not be appropriate or fair to quote from it)
The Respondent said the Complainant subsequently emailed a named person in their HR Department on 8th August 2014, in relation to a transfer application. The Complainant stated that she had taken up the post of Child Protection Social Worker in the area she worked in in 2010 and she realised after a few months that she was not suited to that type of work, and she stated her applications to transfer out of Child Protection. This email was forwarded to the named Regional Human Resources Manager. In an email to this Manager of 15th October 2014, the Complainant finished by stating that she knew that she was not the only person in this position, acknowledging that there were very few transfer opportunities that arose. The Manager informed her that the Case Conference to be held on 13th January 2015 could be used as the informal start of a grievance procedure, following which a formal grievance could be submitted.
The Respondent said that as this a case for constructive dismissal the burden of proof rests with the Complainant to demonstrate that she was constructively dismissed within the meaning of Section 1 of the Unfair Dismissals at 1977 – 2015 and the Respondent quoted from that Section of the Act.
The Respondent said that claims for constructive dismissal are generally based upon 2 tests, i.e. (1) The Entitlement Test and (2) the Reasonableness Test. The Respondent said the Entitlement Test requires consideration of whether the employee’s resignation arose as a consequence of a breach of contract by the employer. The Reasonableness Test evaluates whether the actions of the employer were so unreasonable that the employee was left with no option but to resign.
Contract Test:
The Respondent said that for the purposes of this test an employee must succeed in arguing that they are entitled to terminate the contract on the grounds that the employer has breached a fundamental condition that goes to the root of the contract of employment. The Respondent said that in general, this arises where the actions of the employer demonstrates to the employee that they no longer intend to be bound by one or more of the essential terms of the contract of employment. The Respondent quoted the decision of Lord Denning MR in Western Excavating (ECC) Ltd -v- Sharp (1978) and also from Murray -v- Rockabilly Shellfish [2012] ELR 331in support of their position.
The Respondent submitted that there was no significant breach going to the root of the contract of employment in the instant case. The Respondent said that the Complainant was specifically employed as a Child Protection Social Worker. The Respondent said that as is clear from her submission and from email correspondence, although she performed well in the role, the Complainant felt she was not suited to the particular type of work and she struggled to deal with the emotional impact the job had on her and this led the Complainant requesting to be transferred out of the Child Protection Social Worker role within months of her starting work with the Respondent.
The Respondent said that for the reasons set out in the foregoing they were not in a position to accommodate her request. However efforts were made to support her in her role and it was confirmed to her that a transfer would be facilitated if it were possible to replace her. It was submitted that the inability of the Respondent to facilitate a transfer request does not constitute a significant breach of contract, or indeed any breach at all.
Reasonableness Test:
The Respondent said in relation to this test an employee must show that, although the employer may have acted within the terms and conditions laid down in the contract of employment the employer’s conduct nonetheless was so unreasonable that it entitles the employee to treat the contract as being at an end. The Respondent said that in effect this means that even where the actions of the employer may not amount to a fundamental breach of contract, they may still be regarded as being so unreasonable as to justify the involuntary resignation of the employee.
The Respondent referred to and quoted from the case of A Worker v- An Employer EED0410 in support of their position.
The Respondent said that they fully recognise that the work of a Child Protection Social Worker is challenging and demanding and that the Complainant wanted to transfer out of the that area. The Respondent said that contrary to what the Complainant asserts efforts were made to facilitate a transfer for her. The Respondent said that as the HR Manager made clear in his email to the Complainant of 9th January 2015, facilitating a transfer was not an easy matter, he said:
“”There are no easy solutions here. I fully accept that you are finding the work stressful and that you feelings are genuine. From an employer perspective, we would always seek to find a reasonable solution, but this could not extend to creating new or additional positions for staff. We do not have the resources or capacity to do this, and the workload within Child Protection still requires to be undertaken. There are no staff voluntarily seeking to move into Child Protection or from a previous request willing to swap into CP from another service area. All of this limits our reasonable options.”
The Respondent said that this is not a case where the Respondent has acted unreasonably towards an employee. It is not a case where the Respondent has created or allowed a hostile work environment to be created. The Respondent said that their inability to facilitate the Complainant with a transfer out of Child Protection should not be regarded as constituting unreasonable behaviour by them. The Respondent said it was the nature of the work that the Complainant was appointed to do, rather that the nature of the workplace where she was carrying out that work, which caused the Complainant to resign and to take up other work outside of Child Protection.
The Respondent submitted that the Complainant had not made out a case that she was constructively dismissed by them and that accordingly the complaint was not well founded and it should be rejected.
Findings and Decision:
Section 80 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 of the Unfair Dismissals Act 1977, requires that I make a decision in relation to the unfair dismissal complaint, consisting of a grant of redress in accordance with Section 7 of the 1977 Act.
.
I have carefully considered the evidence and the submissions made and I have concluded as follows.
Preliminary Issue: . Based on the facts and the submissions made to me I am satisfied that, in accordance with the provisions of Section 41(8) of the Workplace Relations Act 2015, the failure of the Complainant to present the complaint to the WRC within 6 months of the date of the termination of her employment with the Respondent was due to reasonable cause. Accordingly I am granting an extension of the normal 6 month period for the presentation of complaints and thus the Complainant is entitled to have her complaint under the 1977 Act heard and adjudicated on.
Substantitive Issue: . . The Respondent in their written submissions denies the Complainant’s assertion that she was never notified of the outcome of her grievance complaint and insists that she was so notified. In their written submission the Respondent states in that respect: (the name of the person dealing with the grievance is omitted by me from this quotation
“The formal decision of …….is set out in a letter to the Complainant dated 4th April 2013. Although it is acknowledged that there is no record of the Complainant having received this letter, the outcome of the grievance was communicated to the Complainant by …… at a Meeting in April 2013. It is also important to note that the email exchange between the Complainant and ….. regarding her grievance ends in or around 15th March 2013. In an email exchange on this date, in response to a question regarding whether there was any progress in relation to the grievance, ….. stated that progress was being made and that he would be in a position next week or the week after to have a formal reply to the grievance complaint.”
I note that it was emphatically denied by the Complainant that the correspondence submitted to the Hearing and dated 4th April 2013 was ever received by her or indeed ever seen by her before the Hearing – a fact that was not contested by the Respondent as the person who wrote the letter was not present. The Complainant further denied that the outcome of her grievance was ever communicated to or discussed with her at a meeting in April 2013 and again the Respondent was not in a position to contest the Complainant’s direct evidence. Apart from the fact that I must accept direct evidence such as that given by the Complainant in this respect to the (very) indirect evidence proffered by the Respondent I note the following. No evidence whatsoever was presented to me that the letter referred to was ever sent by the Respondent to the Complainant, indeed the import of their evidence seems to be that the letter was never sent by them. No date was provided to me of when the alleged meeting in April 2013 took place and equally surprising the Respondent has no written record or notes of such a significant meeting. In relation to the submission made by the Respondent in respect of the emails of 15th March 2013, I do not accept the contention made by the Respondent that it supports the view that a formal reply subsequently issued. Nor do I accept that any reasonable person would accept that contention based on the many and numerous emails and other requests made by the Complainant. The Respondent’s submissions in this respect are not all credible and they are rejected by me. I find that I am totally satisfied that the Complainant was not ever informed of any outcome of her grievance complaint and equally seriously this means the Complainant was not afforded any right to take her grievance complaint further as she is entitled to do in accordance with the Respondent’s Grievance Procedures.
These are very serious failings on the part of the Respondent which means the Complainant was not afforded a full opportunity to deal with her grievances and complaints internally within the employment and in accordance with the Respondent’s Grievance Procedures and they strongly support her contention that the Respondent’s policies were not observed in her case and that she was denied a full opportunity to have her serious complaints addressed and deal with internally and that thus she was forced to take the view that her complaints and grievances were not and would not be dealt with and that she had no option but to terminate her employment.
I note that it is fully accepted by the Respondent that the Complainant’s complaints of workplace stress were genuine (they confirmed that fact to her in writing) and they were presented with copious medical evidence, including from their own Occupational Health Consultant of the fact of this stress and the effect it was having on her health and well being. I further note that the Respondent’s Occupational Health Consultant supported a transfer out of Child Protection for the Complainant.
Apart from frequently and continuously requesting a transfer out of Child Protection to another area of Social Work the Complainant identified and was offered 2 internal alternative positions outside of Child Protection; however she was not allowed to take up those posts. The Complainant’s Principal Social Worker (PSW) did/would not approve her transfer to these positions. The PSW informed that the reason for his refusal to approve these available transfers was because he could not be sure her job/position would be back filled. This was the explanation given for each and every refusal to facilitate a transfer by the Complainant out of Child Protection and I note there were many such efforts including those supported by the Respondent’s Occupational Health Department. I can readily understand the PSW’s concerns in this respect as he wished to avoid his Department being left short staffed in the event that the Complainant was to transfer out of Child Protection and no replacement was secured and I accept that it was reasonable of him to have such concerns. However, such a position could actually be said to be self-defeating, as in this case it resulted in the Complainant being absent of sick leave due to stress and ultimately terminating her employment, leaving the PSW with exactly the same problem in relation to backfilling for the Complainant.
However of considerably more concern is the fact that the Complainant spent 4 years trying to secure an internal transfer out of Child Protection and on each and every occasion, including when supported by the Respondent’s own Occupational Health Consultant, was consistently informed that such a transfer would not be permitted or facilitated by her PSW as he could not be sure that her position would be backfilled. While I accept that the Respondent had a genuine reason for not facilitating the Complaint in the short-term I do not accept that it was a reasonable position to adopt in the longer term and I have concluded that the Respondent was not giving sufficient weight to the acknowledged problems the Complainant was experiencing working in Child Protection. In such circumstances it was reasonable of the Complainant to conclude that it was unlikely in the extreme that she would be facilitated with a transfer out of Child Protection any time in the foreseeable future and that in order to protect herself from the acknowledged stress being caused to her by working in Child Protection she had no reasonable alternative but to resign her position and consider herself as being constructively dismissed.
For all of the foregoing reasons I have concluded that the Complainant was in fact constructively dismissed by the Respondent and that accordingly the Complainant under Section 7 of the Unfair Dismissals Act 1977 is well founded and it is upheld.
In considering the question of redress in accordance with the provisions of Section 7 of the Unfair Dismissals Act 1977, I note and have concluded that the only appropriate redress in a constructive dismissal case is compensation. I note that the Complainant was not unemployed and moved straight to another job without any interval following the termination of her employment. However her new job is at a considerably lower salary or pay rate. Based on the information provided to me I have calculated that the loss is €9,950.66c per annum.
The Complainant was constructively dismissed by the Respondent and I have concluded in accordance with Section 7(1)(c) of the Unfair Dismissals Act 1977 that the amount of compensation that is just and equitable is €15,000.00c and I require the Respondent to pay her that amount within 6 weeks of the date of this decision.
Seán Reilly, Adjudication Officer.
Dated: 2nd March 2017