Complainant

Respondent

Anonymised Parties

A Senior Staff Nurse

A Health Service Provider

Act

Complaint Reference No.

Date of Receipt

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

CA-00015198-001

22/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00015378-001

26/10/2017

The Complainant was employed by the Respondent as a Senior Staff Nurse and worked at a Regional Hospital from October, 2000 until her resignation on 4 June, 2017.

The Complainant claims that she was subjected to penalisation by the Respondent contrary to Section 12 of the Protected Disclosures Act 2014 after having made a protected disclosure. The Complainant also claims that she was unfairly dismissed by way of constructive dismissal, having terminated her employment, in accordance with Section 1 of the Unfair Dismissals Act, 1977.

The Respondent disputes the Complainant’s claim that she was subjected to penalisation contrary to Section 12 of the Protected Disclosures Act 2014 as a result of having made a protected disclosure. The Respondent also disputes the claim under the Unfair Dismissals Act 1977 and contends that the Complainant resigned from her position of her own volition.

CA-00015378-001 – Complaint under the Protected Disclosures Act 2014

The Complainant was employed by the Respondent as a Senior Staff Nurse at a Regional Hospital from October, 2000 until her resignation on 4 June, 2017. The Complainant trained as part of the Link Nurse Programme in 2009 and she was required as part of her role to circulate information regarding infection control in surgical theatres. As an orthopaedic theatre nurse the Complainant observed blood spillages in the theatre on regular occasions. Whilst working as a theatre nurse the Complainant observed consistent issues with mops heavily soiled with congealed blood being left on the floors and sluices of theatres in breach of blood spillage protocols. Specifically, the Complainant was concerned that the porters were ignoring the new policy regarding the single use of mops when cleaning blood spillages from the floors of theatres. These incidents gave rise to the Complainant making several clinical incident reports to senior management regarding failures to adhere to relevant policies and protocols.

The Complainant submits that management did not act appropriately in relation to these incident reports. Instead of addressing the issues, management appear to have informed the porters who were in breach of the policy that the Complainant had filed reports criticising their lack of adherence to the relevant policies. The actions of management damaged relations between the Complainant and the porters. This damage resulted in a complaint against the Complainant for an innocuous remark made to one of the porters. This complaint led to a nine-month workplace investigation that concluded with a mediation meeting after which the matter was dropped.

The Complainant was subsequently moved from the Orthopaedic Theatre to the Central Sterile Services Department. Whilst the Complainant’s formal duties in the surgical theatre had come to an end she continued to notice similar failures with regard to infection control protocols. These observations led to the Complainant lodging one further clinical incident report on 23 May, 2016. Following the referral of this incident report the Complainant was summoned to a meeting with the Director of Nursing and she was instructed to refrain from “any audit of equipment or any environment within the hospital”. The Complainant submits that this instruction directly contradicted her stated responsibilities as a Link Nurse under the Bord Altranais Code of Conduct and left her in no doubt that her monitoring and in particular her reporting of such matters was not welcomed by management.

On 22 August, 2016, the Complainant sent a letter to the Respondent’s Authorised Person for Protected Disclosures expressing her desire to make a protected disclosure relating to the non-compliance with Infection Prevention and Control standards and Blood and Body Fluid Spillage policy by theatre staff. The Complainant initiated further contact with the Respondent’s Authorised Person over the following months in relation to her protected disclosure and submitted all relevant documentation including copies of the incident reports which she had previously made to management regarding the failures to adhere to relevant blood spillage policies and protocols. The Complainant received confirmation from the Respondent’s Authorised on 16 August, 2017 that the concerns raised by her were being dealt with under the Respondent’s framework for protected disclosures and had been referred to the Chief Officer of the Hospital Group for appropriate attention.

The Complainant claims that she was subjected to penalisation by the Respondent as a result of having made this protected disclosure contrary to Section 12 of the Protected Disclosures Act 2014. The Complainant contends that her continued reporting in relation to breaches of the blood spillage policy raised the ire of management against her and resulted in threatening and unfair behaviour which was intended to intimidate her and stop her reporting such matters. The alleged acts of penalisation claimed by the Complainant are set out hereunder.

On 5 January, 2017, the Complainant observed a further incident where the blood spillage policy was breached and reported it by way of letter dated 14 January, 2017 to the Director of Nursing. The Complainant was subsequently required to attend a formal meeting with the Director of Nursing and the Assistant Director of Nursing and there were three issues on the agenda, namely:

·         The abovementioned letter dated 14 January, 2017 which the Complainant had sent to management regarding a report in relation to the breach of the blood spillage policy.

·         A telephone conversation that the Complainant had on 13 February, 2017 with Ms. LH from the Nursing Administration Department.Ms LH had made a complaint that the Complainant had spoken rudely and sarcastically to her during this telephone conversation. The Complainant had not been informed about the existence of this complaint prior to the meeting, so on the advice of her Trade Union representative this matter as not discussed. The complainant also contends that there was a clear breach of procedures in terms of the manner in which this complaint was dealt with by the Respondent.

·         A report received by the Director of Nursing that the Complainant was wearing a Dictaphone in the Theatre Department of the hospital. The Complainant submits that again this appears to have been relayed back to the theatre porters, one of whom made a complaint regarding the Complainant wearing a Dictaphone around her neck. This Dictaphone was worn by the Complainant in aid of her studies and was not being used by her to record conversations with any colleagues. Having been approached by management the Complainant agreed to remove the Dictaphone and assured those involved that no conversations had been recorded.

On 4 April, 2017, the Complainant received a letter from the Director of Nursing in relation to the above issues and it was indicated that the issue in relation to the complaint by Ms. LH had been closed. The Complainant contends that this was unsurprising as it was a frivolous issue that was dropped as soon as she had been given the opportunity to respond to the matter, approx. two weeks before she received this letter from the Director of Nursing.

However, the Complainant contends that the concluding sentence in this letter which stated that “should any similar issues reoccur this will be considered a serious matter and will be dealt with accordingly” amounted to a threat of penalisation. The Complainant submits that given the other two issues discussed at the meeting had been conclusively closed (with the matter relating to the Dictaphone having been closed even prior to the meeting) it was quite clear that this statement was directed primarily at her reporting of the blood spillage policy. The Complainant construed this statement as a threat that she would be penalised in the event that she reported any further breaches of this policy.

The Complainant further contends that the instruction in this letter “not to audit areas outside my work environment” was also spurious as the Central Sterile Supplies Department where she was stationed is situated in the theatre complex and her job entailed entering individual theatres almost daily. The Complainant submits that to suggest her reports were outside her work environment was an attempt to discredit her actions. The Complainant contends that she was obliged to report such matters in accordance with the Bord Altranais Code of Conduct and Ethics and failing to adequately do so could have resulted in a revocation of her nursing registration.

The Complainant submits that she was subjected to a further act of penalisation for having made the protected disclosure when the Respondent attempted to have her referred to the Occupational Health Service or assessment on the misguided premise that she was having psychological breakdown.

This issue arose after the Complainant was summoned to a meeting by the Assistant Director of Nursing on 10 January, 2017 following a complaint by a member of staff that she had been recording a conversation using a Dictaphone. The Complainant denies that she was wearing a Dictaphone to record conversations with staff and claims that she had been carrying this device on her person since September, 2016 (with the knowledge of management) purely for the purpose of assisting with work-related educational course she was pursuing. By the end of the third meeting regarding this issue on 10 January, 2017, senior management had deemed that her wearing a Dictaphone was inappropriate and demanded an undertaking that she desist from such behaviour in the future. The Complainant agreed to this request. However, at the close of this meeting, the Assistant Director of Nursing mentioned that she had displayed “serious distress and upset” after her bereavement. The Complainant disputes this contention and submits that she functioned as normal in her job following the death of her father which was evidence by the fact that she successfully completed course examinations during that period.

The Complainant was only informed by management at the meeting on 28 February, 2017 that Occupational Health had indicated within two days of receiving the referral that there was no evidence suggesting the Complainant required medical intervention. The Complainant contends that her referral to Occupational Health was not conducted in accordance with normal guidelines and procedures and was designed by management as a scare tactic to make her feel vulnerable in her employment.

The Complainant submits that the threatening behaviour displayed by management in relation to this issue, both explicitly in the letter dated 4 April, 2017 and through the improper use of the Occupational Health Service constitutes the threat of penalisation for making a protected disclosure under the Protected Disclosures Act 2014.

CA-00015378-002 – Complaint under the Unfair Dismissals Act 1977

The Complainant claims that she was constructively dismissed from her employment as a result of intimidation by the Respondent’s management after she had repeatedly reported breaches in compliance with the blood spillage policy. These reports had been made over a period of years and included both written and verbal reports. The Complainant contends that she received no encouragement or support in her efforts to improve compliance and on two separate occasions different managers insisted that she acknowledge that the issue was their direct responsibility and they exclusively would deal with the matter.

The Complainant submits that her reporting implicated the actions of theatre porters. This resulted in a complaint by a porter alleging “disturbing” and “profoundly upsetting” behaviour on her part. The subsequent investigation under the internal Dignity at Work Policy took an inordinate length of time to complete (i.e. nine months) and the complaint was subsequently not pursued following a single face to face mediation session. This prolonged delay was deeply upsetting for the Complainant and as a result she felt vulnerable to misrepresentation in the workplace and requested a transfer from the Orthopaedic Theatre to Central Sterile Supplies Department to avoid confusion with portering staff.

The Complainant submitted two further clinical incident reports in relation to breaches of the blood spillage policy which she witnessed during the course of her duties. Following the latter report, the Complainant was summoned to a meeting with the Director of Nursing and two Assistant Directors of Nursing and was instructed to refrain from “any audit of equipment or any environment within the hospital”. This instruction directly contradicted the Complainant’s stated responsibilities specifically as a Link Nurse and under the Born Altranais Code of Conduct. This left the Complainant in no doubt that her monitoring and in particular her reporting of such matters was not welcomed by management.

Following four years in the Central Sterile Supplies Department, a number of positions became vacant in the Orthopaedic Theatre. The Complainant applied repeatedly for a transfer back to the Orthopaedic Theatre and was optimistic in being granted this transfer given her eight years orthopaedic experience and the value that this would bring to the theatre. However, theatre management declined the Complainant’s transfer request, choosing replacements, some of whom had no orthopaedic experience, and in some cases no theatre experience.

The Complainant submits that on four occasions complaints lodged against her to management were not dealt with in a fair or equitable manner. In one instance, the procedure was progressed to a formal meeting with the Director of Nursing before she was informed of the details of the complaint or the name of the complainant. The Complainant submits that stated hospital policy is that complaints are dealt with by line management before being escalated to senior management. The Complainant submits that natural justice provides that she should have been informed of complaints against her and she contends that escalation to this formal meeting highlights management’s eagerness to put pressure on her as a punishment for reporting on breaches of the blood spillage policy.

The Complainant submits that following a fifth complaint in relation to her wearing a Dictaphone (again the name of the complainant was withheld in breach of hospital policy), she was referred to Occupational Health for an assessment of her suitability to attend work on the basis of this complaint. The referral was dated 11 January, 2017 and her wearing of the Dictaphone at work was the stated reason for the referral. The Complainant was summoned to a formal meeting in relation to the matter on 28 February, 2017 with the Director of Nursing and the Assistant Director of Nursing.

At this meeting on 28 February, 2017, the “serious incident” of wearing a Dictaphone was discussed. The Complainant gave a reasonable explanation for carrying the device i.e. that she needed to access lectures while living without internet access in her parents’ home while on carer’s leave. On the Complainant’s insistence at the conclusion of the meeting the referral to Occupational Health was added to the meeting agenda. The Assistant Director of Nursing then informed the Complainant that the referral was closed. The Complainant submits that she was incredulous that they had closed the meeting without mentioning this critical information.

The Complainant submits that management’s explanation for the referral to Occupational Health was that her conduct had caused concern, with the implication being that she required psychiatric evaluation. She contends that the Director of Nursing’s own written explanation detailed a “well meant referral” due to her obvious “distress and upset” arising from her recent bereavement. Notwithstanding this profession of concern, in the Director of Nursing’s letter dated 4 April, 2017 informing her of feedback from the meeting, the final statement (i.e. “if any occurrences similar to the above arise in the future they will be considered serious and dealt with accordingly”) clearly was not meant to be viewed as supportive to a mentally traumatised member of staff. The Complainant construed this comment as an indication that any further reporting of policy breaches would be detrimental to her career.

The Complainant submits that there were contradictory reasons put forward by the Director of Nursing and the Assistant Director of Nursing in relation to her referral to Occupational Health. The Complainant contends that neither position could hold up to scrutiny and she believes that this demonstrated the backtracking by management on the complaint as they knew the Occupational Health referral would be viewed as heavy handed intimidation.

The Complainant submits that as compliance with blood spillage policy had not improved, the health and safety risks meant that she was duty bound to keep reporting these matters. It was clear to the Complainant that management were going to continue to intimidate her with improper use of disciplinary procedures to place undue pressure on her. The Complainant submits that going into work feeling like a target for management caused her serious anxiety and as a result leaving her position at the hospital became her only choice. The Complainant was forced to leave her position at the end of May, 2017 and take up alternative employment in another hospital, on a temporary contract, which involves two extra hours commuting every day.

CA-00015378-001 – Complaint under the Protected Disclosures Act 2014

The Complainant was employed by the Respondent as a Senior Staff Nurse and was based at a Regional Hospital. The Respondent does not dispute that the Complainant made a protected disclosure regarding hygiene standards in the theatre suite at the hospital where she worked. However, the Respondent submits that it is unaware as to the exact date the Complainant made the protected disclosure. The Respondent contends that it was first notified by the protected disclosure from the Quality and Safety Manager of the Regional Hospital Group (with responsibility for the hospital where the Complainant was employed) on 12 January, 2018.

The Respondent submits that this date is approx. six and a half months after the Complainant resigned her employment at the Regional Hospital where she worked. The Respondent contends, therefore, that it could not have penalised the Complainant as she was not employed by the Regional Hospital concerned when they first became aware of the protected disclosure.

The Respondent submits that the Complainant alleges that the penalisation which occurred to her for having made the protect disclosure was the perceived threat that formed part of a letter dated 4 April, 2017 from the Director of Nursing. The Respondent contends that this letter clearly predates the date (i.e. 12 January, 2018) upon which the relevant personnel at the Regional Hospital where she was employed became aware of the protected disclosure.

The Respondent submits that Section 2 of the Protected Disclosures Act 2014 provides extensive protection to individuals who make protected disclosures under the Act. However, the Act does not provide for retrospective linking of perceived penalisation, or other events, to disclosures that have yet to be made, processed or informed to the Respondent. The Respondent submits that, on this basis the letter dated 4 April, 2017 cannot be interpreted or viewed as penalisation as provided for in the Protected Disclosures Act 2014.

Without prejudice to the foregoing, the Respondent denies that the Complainant was subjected to any of the alleged acts of penalisation as a result of having made a protected disclosure.

CA-00015378-002 – Complaint under the Unfair Dismissals Act 1977

Preliminary Issue

By way of a preliminary issue, the Respondent submits that the Complainant was not dismissed, either constructively or otherwise, and that she currently remains in the employment of the Respondent. The Respondent submits that the Complainant informed management on 12th May, 2017 of her intention to resign from her position as a Senior Staff Nurse at the Regional Hospital where she was assigned at that juncture with effect from 4th June, 2017. However, it was submitted that she commenced alternative employment with another hospital under the remit of the Respondent on 29 May, 2017.

The Respondent submits that the Complainant’s employment with the Respondent has not been terminated and therefore, no cause of action under the Unfair Dismissals Act 1977 can arise in the circumstances of the present case. The Respondent submits that the complaint under the Unfair Dismissals Act 1977 cannot succeed and therefore, should be dismissed.

Substantive Claim  

The Respondent denies that the Complainant was dismissed from her employment and contends that she resigned of her own volition from her position as a Senior Staff Nurse with the Regional Hospital where she was assigned at that juncture. The Complainant gave notice of her intention to resign from her position on 15 May, 2017 and has a recorded finishing date of 4 June, 2017. The Complainant commenced work as a Senior Staff Nurse at another hospital under the Respondent’s remit on 29 May, 2017.

The Respondent submits that the Complainant had different viewpoints, opinions and expectations as to the outcomes of situations as they arose in the course of her employment. The Respondent submits that the Complainant failed to invoke the established internal dispute resolution processes in relation to her workplace grievances prior to her resignation. The Respondent contends that these internal procedures are the agreed and established method of raising workplace related grievances which may have been resolved or brought closure to the issues that the Complainant viewed as the reason that she needed to leave her employment.

The Respondent submits that for a constructive dismissal claim to be successful the claimant must provide evidence that s/he exhausted all internal procedures for grievance resolution prior to resigning. The Respondent relied upon the following cases in support of its position, namely: Tusla Child and Family Agency -v- Catherine Flynn[1] and CPL Healthcare and Tusla -v- Keith Blundell[2].

The Respondent also addressed a number of the incidents and issues raised by the Complainant which she has claimed were not dealt with appropriately by the Respondent and were instrumental in her being left with no option but to resign from her position.

The Respondent contends that the issue in relation to the complaint made by the hospital porter against the Complainant was dealt with appropriately by way of mediation in accordance with its internal grievance and dispute resolution procedures.

The Respondent disputes the Complainant’s contention that it took an inordinate amount of time to deal with complaints which had been raised, either by her or against her by other staff members, during the period she worked at the Regional Hospital.

The Respondent also disputes that the Complainant was subjected to any form of penalisation in relation to the incident that occurred concerning her wearing of a Dictaphone in the workplace. The Respondent submits that a complaint was made by another staff member that the Complainant had been wearing a recording device in the workplace. This matter was brought to the Complainant’s attention and she was asked to desist from wearing the Dictaphone in the workplace as there was no requirement for her to use such a device as part of her duties. The Respondent submits that the Complainant was not subjected to any disciplinary action in relation to this matter.

The Respondent also disputes the Complainant’s contention that the referral to Occupational Health was intended to intimidate or penalise her in any way. The Respondent submits that this referral was well intended and arose following concerns about the Complainant’s well-being following the death of her father.

The Respondent also disputes that the Complainant was penalised as a result of the refusal to accede to her request for a transfer to the Orthopaedic Theatre. The Respondent submits that the Complainant was a valued member of staff in the Central Sterile Supplies Department and that it would have left a vacancy in that Department if the Complainant had been granted a transfer at the material time in question. The Respondent submits that it was unable to facilitate the Complainant’s request for a transfer purely on the basis of the operational requirements of the hospital.

In summary, the Respondent denies that the Complainant was constructively dismissed from her employment and contends that she resigned of her own volition without invoking the established internal grievance procedures in relation to any workplace related grievances which arose prior to her resignation.

CA-00015378-001 – Complaint under the Protected Disclosures Act 2014

The Complainant has claimed that she was subjected to penalisation contrary to Section 12 of the Protected Disclosures Act 2014 after having made a protected disclosure to the Respondent in relation to alleged breaches of the hospital’s blood spillage policy.

The Respondent does not dispute that the Complainant made a protected disclosure within the meaning of Section 5 of the Protected Disclosures Act 2014. However, the Respondent contends that it could not have penalised the Complainant as she was not employed by the Regional Hospital concerned when it first became aware of the protected disclosure. The Respondent contends that it was first notified of the protected disclosure from the Quality and Safety Manager of the Regional Hospital Group (with responsibility for the Regional Hospital where the Complainant was employed) on 12 January, 2018.

The Respondent submits that this date was approx. six and a half months after the Complainant resigned her employment at the Regional Hospital where she worked. The Respondent contends, therefore, that it could not have penalised the Complainant as she was not employed by the Regional Hospital concerned when they first became aware of the protected disclosure.

In considering this matter it is necessary to determine the precise date upon which the “relevant information” which the Complainant contends constitutes a protected disclosure within the meaning of Section 5 of the Protected Disclosures Act 2014 was disclosed to the Respondent.

It is clear from the evidence adduced that the Complainant informed the Authorised Person for Protected Disclosures within the Respondent organisation in writing on 22 August, 2016 that she wished to make a protected disclosure relating to the non-compliance with the relevant blood spillage policies at the Regional Hospital where she worked. I am satisfied that the Complainant, in doing so, complied with the Respondent’s internal policy for the communication of protected disclosures. It is also clear that the Complainant was in contact with the Respondent’s Authorised Person on a number of occasions during the subsequent 18 months to try and ascertain the situation in relation to this matter. The Complainant was informed by the Respondent’s Authorised Person on 16 August, 2017 that the “concerns which you have raised are being processed under the framework for Protected Disclosures and have been referred to the Chief Officer of the Hospital Group for appropriate attention”. It was subsequently confirmed to the General Manager of the Regional Hospital where the Complainant had worked on 12 January, 2018 that an investigation had been commissioned into the protected disclosure made her.

Having regard to the foregoing, I am satisfied that the Complainant made a protected disclosure within the meaning of Section 5(3)(d) of the Act and that the “relevant information” was disclosed to the Respondent on 22 August, 2016. Accordingly, I do not accept the Respondent’s contention that it was first notified of the protected disclosure on 12 January, 2018.

The Complainant alleges that she was subjected to a number of incidents of penalisation which she claims occurred during the period after making the protected disclosure on 22 August, 2016 up to and including 4 April, 2017 when she received correspondence from the Respondent threatening further penalisation.

The Workplace Relations Act 2015 provides at Section 41(6) and 41(8) as follows:

“41(6). Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

41(8). An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The present complaint was referred to the Director General of the Workplace Relations Commission on 26 October, 2017. Having regard to the provisions of Section 41(6) of the Workplace Relations Act 2015, the six-month time limit within which the complaint in respect of alleged penalisation can be made is the six-month period from 27 April, 2017 to 26 October, 2017. Given that the most recent act of penalisation was alleged to have occurred on 4 April, 2017, I find that the Complainant’s alleged penalisation complaint is out of time. No application or submission has been made by the Complainant that any failure to refer the within complaint to the Workplace Relations Commission within the time limit prescribed in Section 41(6) of the Act of 2015 was for reasonable cause. Accordingly, I find that I do not have jurisdiction to inquire into the alleged acts of penalisation under the Protected Disclosures Act 2014.

CA-00015378-002 – Complaint under the Unfair Dismissals Act 1977

Preliminary Issue

The Respondent contends that the Complainant’s employment has not been terminated as she has remained in continuous employment from the commencement of her employment on October, 2000 until the present day. The Respondent further contends that no cause of action under the Unfair Dismissals Act 1977 can arise in the circumstances of the present case and the complaint cannot succeed and therefore, should be dismissed.

The Complainant is claiming that she was constructively dismissed on 4 June, 2017 from her position as a Senior Staff Nurse at a Regional Hospital which comes under the remit of the Respondent.

The term “constructive dismissal” is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which 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.”

In order to rely upon the provisions of Section 1(b) the Complainant must establish, in the first instance, that there was a termination of her contract of employment. It was not in dispute that the Complainant resigned from the position she held at the Regional Hospital and took up alternative employment with another hospital that also comes under the remit of the Respondent.

I am satisfied from the evidence adduced that the contract of employment which the Complainant held in relation to her employment as a permanent Senior Staff Nurse with the Respondent was terminated when she resigned from her position at the Regional Hospital with effect from 4 June, 2017. The Complainant was not required to work her notice period and she was offered a new contract of employment at the alternative hospital which she commenced on 27 May, 2017. It is clear that the Complainant was provided with an entirely new contract of employment, albeit with the same employer, but with different terms and conditions, when she commenced employment at the alternative hospital on 27 May, 2017. One of the significant differences in these terms and conditions was that the Complainant’s employment at the new hospital was on a fixed-term temporary basis for 12 months whereas her initial contract was permanent.

In the circumstances, I find that the Complainant’s contract of employment with the Respondent was terminated upon her resignation from her position at the Regional Hospital on 4 June, 2017.

Substantive Issue

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp[3]. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “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 other performance.” The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Supreme Court in Berber -v- Dunnes Stores[4]: “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment.

The Complainant claims that she was intimidated by management after she had repeatedly reported breaches in compliance with the hospital blood spillage policy. The Complainant claims that management failed to take appropriate action in relation to this matter and instead she was subjected to ongoing intimidation in the workplace over a sustained period of time. The Complainant claims that her position ultimately became untenable and she was left with no alternative but to resign from her employment at the Regional Hospital.

The Respondent disputes the claim of constructive dismissal and denies that the Complainant was subjected to intimidation by management during her period of employment. The Respondent contends that the Complainant resigned of her own volition after failing to invoke and fully exhaust the internal grievance procedures in relation to any of the alleged instances of intimidation in the workplace.  

It is well established that in advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers.

The Labour Court has held in the case of Emmanuel Ranchin -v- Allianz Worldwide Care S.A.[5] that: ”In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of John Travers v MBNA Ireland Ltd[6] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In considering this issue, I am satisfied that the Respondent had an established Grievance and Disciplinary Procedure in place which conforms to the general principles and procedures enunciated in the Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000[7]. Having regard to the evidence adduced, I find that this policy was brought to the Complainant’s attention during her period of employment and that she was fully aware of its existence.

In accordance with the established principles in constructive dismissal cases, I am satisfied that there was an obligation on the Complainant to invoke these internal procedures to try and resolve the workplace related grievances which arose during her employment before taking the step to resign from her employment. Based on the evidence adduced, I do not accept that the Complainant sought to invoke the internal grievance procedures in relation to these workplace related grievances which arose during her period of employment.  

In the circumstances, I find that the Complainant has not established that the conduct of the Respondent was such that she had no option but to resign her position. I find that the Complainant did not give the Respondent an opportunity to address her concerns before taking the decision to resign from his employment.

I find that the Complainant has not established a case that she had no option but to resign her position. Accordingly, I find that the Complainant was not constructively dismissed from her employment.

CA-00015378-001 – Complaint under the Protected Disclosures Act 2014

Section 41 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.

I find that the Complainant’s alleged penalisation complaint does not comply with the prescribed time limits set out in Section 41(6) of the Workplace Relations Act 2015. Accordingly, I do not have jurisdiction to inquire into the alleged acts of penalisation under the Protected Disclosures Act 2014.

CA-00015378-002 – Complaint under the Unfair Dismissals Act 1977

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.

I find that the Complainant resigned from her position of her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act 1977. Accordingly, I find that her complaint cannot succeed.

Protected Disclosures Act 2015 – Section 5 – Protected Disclosure – Penalisation - Out of Time – Unfair Dismissals Act 1977 – Section 1 - Constructive Dismissal – Resignation – Complaint Fails