EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
John Paul Carroll (claimant) UD981/2015
Against
Congregation Of The Holy Spirit T/A Registered Charity
Chy 076 (respondent)
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr P. Pierce
Mr F. Keoghan
heard this claim at Dublin on 20th December 2016 and 22nd February 2017
Representation:
_______________
Claimant: Mr William Joyce, Business & Commercial Solicitors, Leeson
Chambers, 28 Lower Leeson Street, Dublin 2
Respondent: Ms Niamh Ni Cheallaigh, IBEC, Confederation House, 84-86 Lower
Baggot Street, Dublin 2
The Tribunal has carefully considered the evidence adduced on 20th December 2016 and 22nd February 2017.
The claimant herein brings this matter before the Tribunal as a constructive dismissal from his employment as recognised under the Unfair Dismissals legislation.
In order to succeed in his claim the claimant must satisfy the Tribunal that the circumstances surrounding his resignation were such that no person could reasonably be expected to continue in the employment in consequence of the treatment of him by his employer, the respondent herein.
The claimant had been engaged in the respondent’s nursing home since 2010. The claimant was a general maintenance operative with driver skills. It is understood that the claimant’s own father had worked with the respondent and that the claimant knew in a personal way many of the clients in the nursing home. In January of 2014, the claimant states that he witnessed an event which constituted elder abuse by a co-worker (a Mr. X) and this incident was upsetting and shocking to the claimant who knew personally the elderly person involved.
The claimant reported the incident to the Matron and the Health Care Manager which was the appropriate action to take. The claimant gave a statement.
The claimant was concerned that he had not heard anything further about any potential investigation but says when he raised the issue with the Matron and Health Care Manager they suggested that it was being dealt with and that he should not concern himself any further.
It became apparent to the claimant that Mr. X knew that a complaint had been made and the claimant stated that Mr. X mounted a campaign of intimidation against the claimant about which the claimant complained.
The claimant approached HIQA at this time as he felt his original complaint of elder abuse had not been correctly investigated and in the aftermath of this approach the claimant says he was treated with scorn and contempt by many of his colleagues in the workplace.
The claimant says he was called a “a rat”, that his Line Manager blanked him and that the Matron and Health Care Manager were now accusing him of breaches of confidentiality contrary to his contract of employment.
It is worth noting that the claimant had no formal contract of employment at this time and the Tribunal was told that a lot of the groundwork and maintenance employees were indeed without contracts of employment as they had been taken on informally through members of the community rather than through the HR department such that there was one.
It is further accepted that no obvious Grievance Procedure was available to the staff as no handbook was prepared as a reference document.
The claimant was understandably upset with the perceived change in atmosphere towards him in the workplace. The pressure gave rise to stress and absences from the workplace. The claimant says he would have discussed his problems with some of the patients who were his friends and who often asked him how he was. It was in the context of these sorts of conversations that the claimant got pulled up on breaking confidentiality expected of employees in a workplace of this sort.
The claimant was advised that he was upsetting people with his allegations of elder abuse with his having reported matters to HIQA and for his indiscreet conversations with persons not involved directly with the incident.
On balance the Tribunal would have to accept that even in the clear absence of a non-disclosure clause in an acknowledged contract of employment, the claimant, along with any co-employee knew or ought to have known that matters as sensitive as care of the elderly and vunerable should not be discussed other than in an appropriate and confidential way. It was certainly appropriate to bring concerns to HIQA and management, it was not appropriate to discuss these concerns with the patients and clients. The claimant had overstepped the boundaries that should operate in this type of work place.
As against this, the claimant was coming under a sustained campaign from Mr. X and whilst this was temporarily alleviated with into the roster being changed to put Mr. X on nights the claimant now felt that the campaign went beyond just Mr. X and felt other members of staff were giving him a hard time. The Tribunal also fully accepts that the claimant was not given any reason to believe that his original complaint of elder abuse had been taken seriously and was being investigated. There are competing interests at stake here. On the one hand confidentiality and on the other hand a quite reasonable need to know that a complaint has been taken seriously.
It is noted that the claimant did not bring a formal grievance though a formal grievance procedure was not in place probably before September 2014.
At a point unknown but certainly before 16th October 2014 the claimant had engaged a solicitor who wrote to the respondent and clearly set out the extent of the victimisation, harassment and penalisation. The letter in question also purports to address other issues and solutions but in effect the letter was seen by the respondent as triggering a grievance process which they react to by way of letter dated 22nd October 2014 inviting the claimant to a meeting on the 6th November for the purpose of exploring the grievance raised.
The meeting was conducted by the Property and Finance Manager Mr. L. Both the claimant and his brother gave evidence as to the unsympathetic tone in which the meeting was conducted. The Tribunal notes an unreasonable refusal to share notes of the meeting as having gotten that meeting off to a bad start. However, a typed note of the meeting was confirmed by the claimant’s brother as being a reasonably accurate account of the meeting and the Tribunal does find that (whatever about the tone of the meeting) the content seemed to point to an overall effort to try and get some shape on the allegations of bullying and harassment which the claimant wished to make.
On any analysis of the evidence, the Tribunal would have to conclude that the grievance process was being considerably foreshortened by any suggestion of moving to an outcome meeting, as the claimant had no idea what other witnesses had said and had not been given any right of reply.
However, this was not an argument that the claimant had made as at this point the claimant simply refused to engage in the grievance process and through his solicitor advised his employer indicating an intention to “resile from any further meetings”.
The claimant was given the outcome report and advised of his entitlement to appeal this. The claimant was also invited to take part in a mediation process.
The claimant did question the outcome report but in the context of threatened proceedings by solicitors letter of 22nd January 2015.
The claimant did attend mediation but the demands made by the claimant were well outside the scope of the grievance process that was being engaged in up to this point.
On balance the Tribunal finds that the claimant did not exhaust the internal procedures available to him not just the appeal aspect but also the entitlement to address the availability of witness statements was passed by.
The Tribunal also finds that the respondents own actions were imperfect and placed the claimant at a disadvantage insofar as there was no “roadmap” (grievance procedure) made available and the claimant was clearly unhappy and alone. The Tribunal therefore finds that there was a constructive dismissal ultimately but the claimants own actions brought him to that point as much as any action on the part of the respondent and award €4,100 in the circumstances.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)