Complainant

Respondent

Anonymised Parties

A Care Worker

A Healthcare Company

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-00014944-001

12/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014944-002

12/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00014944-003

12/10/2017

The case concerns a Care Worker and her alleged Constructive Dismissal from a Healthcare Company.

1:1       Unfair Dismissals Act,1977 complaint - CA-00014944-001

The Complainant alleged that her hours of work were reduced from an initial 20 + to 10 hours and occasionally to 4 hours per week. This compared most unfavourably with other staff members. She felt that her requests for additional hours were not being taken seriously and that she was being ignored by the Respondent. She was left with no option but to tender her resignation from the Respondent and gave in her notice on the 7th June 2017.

The Complainant maintained that she had always been very flexible and co-operative with the Respondent’s scheduling requests but that this had not been acknowledged. The offers of work made to her were unsuitable, often involved considerable travel and were socially unsuitable. Her pattern of work in her initial period of employment was completely overturned.

1:2     Terms of Employment (Information) Act ,1994 Complaint  CA-00014944-002

The Complainant alleged that she had never received a Statement in Writing of her Terms and Conditions of Employment.

2:1       Unfair Dismissals Act,1977 complaint -   CA-00014944-001

The Complainant commenced employment in May 2014. Until 2017 she worked primarily on placements with two Service Users who resided in Wicklow -convenient to the Complainant. This amounted to approximately 20 hours per week. In addition, an extra 12 hours per week placement was worked with a Minor Service User from April to November 2016.

However, changes in the patterns of need of the Service Users resulted in their withdrawal from the care of the Respondent in December 2016 and January 2017.

On the withdrawals above the Respondent immediately began seeking new placements for the Complainant. Placements in Portlaoise and Walkinstown were offered but declined due to distance and duration. The Complainant made it clear to the Respondent that she wanted short shifts close to her home in South Dublin. A number of 24 hour “wrap shifts” were also offered. The Complainant declined these unless she could be accompanied by a particular colleague – Mr B. This proved impossible to organise.

At the end of January Ms. XA from the Respondent contacted the Complainant to discuss her availability and that it was necessary for her to be flexible to allow her targeted contracted hours to be reached.

In February the Complainant’s father passed away. Compassionate Leave was allowed. An offer of a placement in Kilquade, Co. Wicklow was declined by the Complainant on the basis that the offered shifts were too long.

The pattern of difficulty with offered work continued during March, April, May and June. A number of small placements were taken up but cumulatively the hours processed for the Complainant dropped significantly. On the 7th June 2017 the Complainant gave notice that she was resigning her position with effect from the 14th June 2017.

Ms. XA of the Respondent contacted the Complainant around this time (22 June 2017) and discussed her resignation. The Complainant made it clear that she was leaving as she was not getting enough work and was not willing to drive to certain locations.

In their evidence the Respondent stated that the Complainant had, since January, imposed “extremely strict and self-limiting criteria” in relation to which hours and locations she would work. This made getting her suitable placements extremely difficult.

The Responded had no desire to lose her services as Care Workers were in constant demand and the Complainant had always been a first-class worker.

It was also pointed out that the Complainant had on no occasion ever raised a Grievance regarding her hours as provided for in the Grievance Procedures set out in the terms of her Employment contract.

In terms of a Constructive Dismissal claim this was major impediment. A number of Legal and EAT Precedents were also quoted in support of the Respondent position

2:2     Terms of Employment (Information) Act ,1994 Complaint     CA-00014944-002

At the Oral Hearing this complaint was effectively disposed of by written evidence from the Respondent of a Contract and Terms and Conditions having been supplied and dated the 11th May 2014. The evidence was not challenged.

3:1     Unfair Dismissals Act,1977 complaint - CA-00014944-001

The Relevant Law

The Unfair Dismissal Act ,1977 and SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures is the key legislation. In addition, there are considerable Legal and EAT precedents in the area of Constructive Dismissal and extensive precedents were quoted in the evidence presented.

It is also a key requirement that the Rules of Natural Justice are applied in all situations. The leading Authority here is Justice Flood in the case of Frizelle v New Ross Credit Union. - Frizelle v New Ross Credit Union Ltd, [1997]IEHC 137 Flood J.

In a case of Constructive Dismissal, it is considered that two legal tests apply.

The Breach of Contract Test

&

The Unreasonable Behaviours Test.

The Breach of Contract test is essentially a requirement on the Parties to demonstrate that the basic Employment Contract was so fundamentally and seriously breached that the employment relationship was effectively over leaving the Complainant with no option but to resign.

The Unreasonable Behaviours Test is essentially where the Complainant can demonstrate to a sufficient degree that the behaviour towards the employee of the Employer was so unreasonable, so grievous, that the Complainant was left with no reasonable option but to resign.

It is also deemed to be a crucial factor that any available internal Procedures such as a Grievance resolution process is utilised by the employee prior to a resignation.

However, Legal precedents notwithstanding, every case must be seen in the light of its own evidence.

3:2       Consideration of the Evidence.

The evidence in this case was by way of written submissions and oral evidence by the Complainant and Respondent Managers.

From the Oral evidence it was clear that the Complainant was an excellent employee. However, the initial period of her employment from 2014 to 2017 was based on caring for the needs of two service users residing convenient to her own home. The hours and travelling times suited her.

When these two Service Users were no longer available it was clear that unless a similar or very similar arrangement could be provided she was going to have availability problems. This proved to be the case and the amount of work she was allocate in the Jan to June period was quite limited. The Respondent Managers reported quite a degree of frustration with the Complainant -going so far as to describe the situation as one of “extremely strict and self-limiting criteria” being used by the Complainant.

Accepting that the Complainant’s father passed away in February which obviously reduced her availability that month the pattern was one of selective unavailability in regard to placements offered. It was accepted that some of these were of the Wrap Shift variety which the Complainant would not have been used to previously. However, the Respondent pointed to the Contract of Employment which allowed for same and the need for flexibility. Flexibility had never arisen as an issue in the first two years as the work was local and suited the Complainant’s outside and domestic arrangements – her husband being unwell and the need to be available to mind grandchildren being mentioned.

No animosity between the parties was evident and all gave convincing oral evidence.

3:3     Summary and Conclusions

Bearing in mind the two Legal Tests referred to above in relation to a constructive Dismissal I could not see any evidence of a fundamental Breach of Contract nor could I see any evidence of Unreasonable Behaviours by the Respondent so grievous as to justify a resignation. The plain fact seemed to be that the requirements of the Complainant regarding flexibility in terms of hours and geographic locations (effectively replicating her first long term placement) could not be easily accommodated by the Respondent. It was on this basis that I felt the resignation was grounded.

I noted that the Complainant had almost immediately after leaving the Respondent taken up Care Work with another competitor Agency.

It was pointed out by the Respondent that no Formal Grievance was ever raised via Internal Procedures which would be a normal requirement to ground a Constructive Dismissal claim.

Accordingly, in view of the above, I had to come to the conclusion that the resignation of the 7th June 2017 was a calculated act and no claim for a Constructive Dismissal can stand.

The Unfair Dismissals Act,1977 claim must fail.

3:4       Terms of Employment (Information) Act ,1994 Complaint     CA-00014944-002

This claim is also set aside as the evidence pointed to a formal contract of employment having been provided as early as the 11th May 2014.

Act

Complaint/Dispute Reference No.

Summary Decision /Refer to Section Three above for reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00014944-001

Claim dismissed / Claim for Constructive Dismissal does not have good grounds.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014944-002

Claim dismissed – written contract provided.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00014944-003

Withdrawn before Hearing.