ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00008848

Parties:

Complaint(s):

Date of Adjudication Hearing: 25/09/2017

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

Summary of Complainant’s Case:

The Complainant presented their case verbally and by witness statement.

The Complainant was employed on fixed term contracts as Residential Care Worker.

Her hours were never enough to support her and she also worked for the Respondent through an Agency.

On October 16^th 2016 an incident took place and the Complainant was notified of an allegation made against her and she was immediately asked to leave the premises. She was placed on paid suspension immediately and was subject to an investigation.

This process took and inordinate time (approx. 4 months) and the Complainant was vindicated. She was put through enormous stress during this period and it affected her personal life and relationship with work colleagues.

The report was finalised on November 28^th 2016 but the suspension was not lifted until January 31^st 2017.

After the Complainant returned to work her work hours were reduced and she felt she had to leave due to this and the atmosphere at work after the allegation.

Summary of Respondent’s Case:

The Respondent received a complaint regarding alleged abuse from a parent against a child on October 16^th 2016.

The Respondent acted upon this in line with their internal disciplinary policy and procedure. The Complainant was immediately placed on paid suspension pending an investigation.

The Complainant was advised of the situation and her rights of representation and an investigation was conducted. Witnesses were met and a draft report produced on December 13^th 2016. This report was delayed due to waiting for a witness statement. On January 25^th 2017 a final report was sent to the CEO. It was found that there was insufficient evidence to collaborate the allegation. No disciplinary action was therefore warranted or taken.

During the investigation the Complainant did not make any complaints about the process or raise a grievance or the investigation process or timetable.

On January 31^st the Complainant was informed that the allegation was unfounded and her suspension lifted and she could return to work.

The Complainant was offered the same hours as prior to her suspension and turned down numerous opportunities to work. Details were supplied at the Hearing. The Complainants solicitor wrote to the respondent in March 2017 outlining issues on behalf of the Complainant. The Respondent replied to this but did not hear any more from the Solicitor. The complainant resigned on June 9^th 2017.

The Respondent denied it contributed in any unfair way to the Complainant resigning and deny the claim for constructive dismissal and that it had the responsibility to fully investigate the complaint by the child’s parents and they did this thoroughly and professionally in a fair manner and the Complainant was paid during the period of suspension and did not suffer any victimisation when she returned to work.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act. The claim under the Payment of Wages Act 1991 (reference no CA-00011773-001) was withdrawn at the Hearing.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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. This decision relates to claim reference no CA-00011773-001. Constructive dismissal is defined in the Act as follows; Section 1b) “ 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”.

The Complainant is claiming constructive dismissal and therefore the onus is on the Complainant to show that she had severe grounds for submitting her resignation. In this case the Complainant never raised a formal grievance with regard to her perceived delay in the investigation process. I also note that the report dated November 28^th was only a draft report and the final report is dated later on January 27^th 2017.. Therefore there is not an inordinate delay between that day, given the time of year, and the Complainants suspension being lifted a few days later. While it could be perceived that the investigation could have been completed sooner the onus was on the Respondent to take due care when the possible safety of a child is concerned due to an allegation, albeit one that subsequently turned out to be unfounded. . It also important to note that the Complainant was paid her average wages prior to the suspension for the period of her suspension.

With regard to the reduction in Hours data as supplied by the Respondent at the Hearing of dates after the Complainant returned to work it appears to show 18 occasion where the Complainant refused work during her employment and 4 occasions between her return to work after suspension to the date she resigned. This seems a consistent pattern and does not show any discrimination by the Respondent in that regard when she returned to work after suspension. At the Hearing the Complainant never provided any concrete evidence of her hours being reduced and she was on a flexible hour’s contract also.

In an impassioned witness statement in response to her Solicitor, it was obvious the Complainant was very upset at the whole allegation and the time the investigating process took, but this does not eliminate the need for her to show that she had just cause to leave her employment and claim constructive dismissal.

In a recent EAT case the EAT Judgement stated ” The claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The burden of proof, which is a very high one, lies on the Complainant. . She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract. 

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

If the tribunal is not satisfied that the “contract” test has been proven then it is obliged to consider the “reasonableness” test. 

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

 When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate his contract of employment. The Respondent argued that in addition to satisfying the test set out by Lord Denning in Western Excavation (E.C.C) Ltd the claimant, must also show that she exhausted the internal grievance process prior to lodging her claim with any external body. In that regard they rely on the case of Conway V Ulster Bank Limited UD 474/1981 where in the Tribunal stated:-  

“In writing the letter of resignation, the appellant did not take the steps outlined in the grievance procedure. The Tribunal has long considered that such agreements, usually described as Union Management agreements, are binding on the parties because they chose to be bound by them”. End of quote from the EAT.

 I find that the process, while it could have been a bit quicker, was dealing with an allegation involving a child and by its very nature the Respondent had to investigate this and conclude a thorough process. The Complainant never provided any serious evidence of her being offered reduced hours and being victimised as a result of the complaint. The Complainant was also paid throughout the investigation process and she never raised an internal grievance in between the time of her suspension and time of resignation. I find that there was neither a substantial breach of the Complainants rights to fair process or employment rights/contract and nor was it reasonable for her to terminate her employment, based on the evidence heard. I find that the claim for constructive dismissal fails on the cumulative effect of all of the above three grounds.

Dated:   15/11/17

Workplace Relations Commission Adjudication Officer: Peter O'Brien

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