ADJ-00007152

Complainant

Respondent

Anonymised Parties

Senior Dietician

Hospital

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-00009619-001

09/02/2017

The Complainant was employed as a Senior Dietician from 1st February 2006 to 25th November 2016. She was paid €2,269.00 per fortnight. She has claimed that she was constructively dismissed and has sought compensation.

The Claimant resigned from employment on 26th November 2016.   The facts and circumstances leading to the Claimant’s resignation arise from disciplinary proceedings commenced against the Claimant in October 2015 and which were subject to a determination of the Workplace Relations Commission under the Industrial Relations Acts in March 2016. It is the Claimant’s position that the Respondent failed, despite having undertaken to do so, to implement the recommendations therein and continued to undermine the relationship of trust and confidence necessary in the employment relationship. In order to demonstrate the reasons for the Claimant’s belief that the relationship of trust and confidence was undermined by the Respondent’s actions it is necessary to outline the extremely difficult working conditions which the Claimant has faced since in or around 2008. For the avoidance of doubt, and anticipating submissions in this regard from the Respondent, the Claimant does not rely on the difficulties she faced throughout her employment with the Respondent as justifying her decision to resign; such issues are raised, to provide a more complete understanding of the circumstances faced by the Claimant in November 2016. Moreover, in the interests of avoiding prolixity, the Claimant does not detail each and every instance of unacceptable conduct on behalf of the Respondent predating October 2015 herein; such instances which are so detailed are merely indicative of the Respondent’s behaviour toward the Claimant.

History of the employment relationship

In or around December 2009 the Claimant received an email from her line manager the Clinical Nutrition Manager, asking to speak to the Claimant about a complaint that had been received by a staff member during an exit interview. The Claimant spoke to the relevant staff member, with whom she was on good terms, who informed the Claimant that she had raised no such complaint during her exit interview, that her manager had raised the issue of a minor disagreement they both had three years earlier in December 2006 at the exist meeting in 2009 and was asking questions about it. At the meeting the Claimant requested that the allegations against her be substantiated. Her manager was unable to substantiate the allegations purportedly giving rise to the complaint and the issue then effectively become redundant. While no disciplinary or other action resulted from this incident, the Claimant believes this was the first example of her manager using her superior position and abusing the Respondent’s employment procedures to the detriment of the Claimant and without proper grounds for so doing. It is to be noted that the Claimant does not dispute that at all material times she has had a difficult personal relationship with her manager.

The Claimant’s difficult relationship with her manager continued. In 2010 on return from annual leave she was met at the stairs in the public corridor when she walked in at 8.20 am by her manager who asked her how she had dealt with a particular outpatients department referral.   She then said we will talk about this again and walked away into her office and closed the door behind her. It was never discussed again. On the 25th August 2010, the Claimant was asked to collect a letter from her manager. When she went to pick up the letter she was handed a sealed envelope. When asked what it was about, she was given no explanation but was told “it’s all in the envelope.”   The said letter invited the Claimant to a meeting under the Respondent’s Grievance and Disciplinary Policy in respect of 6 allegations of inadequate ‘patient record cards’, although the letter went on to state “these [6 allegations] are not exhaustive list of patient record cards noted- samples only.” The Claimant attended the disciplinary meeting in September 2010 and provided a detailed statement answering the allegations actually made against her. She was not given a proper opportunity to defend herself or go through her statement to address the points.   Her written statement was not put on her personnel file even though it addressed the allegations made. She requested minutes of this meeting, but she never received the same. The manner in which this matter was dealt with was wholly unfair and unsatisfactory. The Claimant attempted to speak to the Respondent’s HR Department when she received the letter from her manager and his response was “I know all about you and I will be the person making the decision at the meeting”.     For current purposes, however, it is important to note that the Claimant believed, and believes, it was most unsatisfactory and unfair for her manager to conduct a documentary review into the Claimant’s work while she was on annual leave and present her with adverse findings of fact upon her return, a pattern of conduct repeated throughout the employment relationship. The Claimant also had a report from her GP dated 13th September 2010 outlining her personal circumstances at the time. This was given to the HR representative at the meeting on 16th September 2010 – he did not include it on the Claimant’s personnel file as requested.

The outcome of this disciplinary meeting was that the Claimant was given a verbal disciplinary warning and required to meet her manager on a fortnightly basis to manage her performance.   While the Claimant sought to constructively engage with her manager during these fortnightly reviews, it became apparent that she was using these as an opportunity to undermine the Claimant’s professional position and the Claimant’s own professional confidence. This situation was not helped by her manager conducting ‘spot checks’ on the Claimant’s record keeping.   On the 10th November 2010, the Claimant wrote to HR informing him that she believed she was being subjected to “repeated fault finding and undermining behaviour from my managers.”   The Claimant also noted that she would prefer to avoid raising a formal grievance and was referred to the Employee Relations Department.

Unfortunately, the Respondent did not address the Claimant’s concerns.   Moreover, the Claimant formally wrote to her manager on 26th January 2011 but this failed to resolve matters. On the 9th March 2011, the Claimant again requested that her manager’s conduct during her performance reviews be dealt with, in particular the Claimant requested that a 3rd party keep notes of said meetings because she disagreed with the contents of the notes. In a rather perfunctory response, the manager refused the Claimant’s request and directed her to lodging a grievance. When such a grievance was lodged, the Respondent only investigated work practices and did not consider the interpersonal difficulties that the Claimant had referred to in her complaint. Naturally, the Claimant found the constant undermining of her professional performance and confidence at the performance reviews stressful. Also, the Claimant was under constant stress from the ever present danger of her manager conducting a spot check on her work. Moreover, the Claimant was faced with difficult family circumstances which required her to return to her parent’s home in Westmeath to care for them. This combination of circumstances caused the Claimant to be absent from work more frequently than she wished. However, it should be noted such absences were properly medically certified. The Claimant spoke with the HR Department on 26th October 2011 about how she felt bullied by her manager and felt she was trying to force her out of her job.   HR advised her not to proceed with a formal grievance as this would be worse for her. By letter of the 8th October 2011 the Claimant wrote to Human Resources Department with her complaint. The Claimant agreed to take part in an informal grievance process with the Scope Manager.   The Claimant found this to be extremely antagonistic towards her and found the meetings which took place on 13th and 24th January 2012 very distressing and upsetting. On 17th February 2012, the Claimant was given a verbal disciplinary warning because of her attendance. This was so even though the Claimant responded to proposed disciplinary sanction by email of 10th February 2012, explaining the medical difficulties she had been facing, and letter of 11th February 2012 explaining that she had been falsely imprisoned in her home and was suffering from a form of post-traumatic stress disorder.   The Respondent was apparently unmoved by such explanation and, without regard to whether the absences would continue and effect the Claimant’s capability to perform her contractual responsibilities, issued a disciplinary warning. On the 10th April 2014, the Claimant was again issued with a verbal warning because of her absence by her manager. Again, all such absences had been medically certified, many of them related to the stress caused by the difficult relationship between the Claimant and her manager’s conduct toward the Claimant and one relatively extended absence was because of an unforeseen medical difficulty that would be unlikely to cause further absences. Moreover, the Claimant informed the Respondent that she was happy for her annual leave to be used against her sick leave to avoid a disciplinary sanction being imposed. Despite these submissions her manager imposed a further verbal warning on the Claimant whose appeal against the severity of the sanction was dismissed.

It is submitted the Adjudicating Officer should have regard to above in respect of Claimant’s reasonableness in terminating her contract of employment.   In particular, the fact that Claimant was subjected to almost constant and unwarranted performance review, was issued with unnecessarily severe disciplinary warnings which failed to consider in any meaningful way the Claimant’s personal and professional circumstances, and was not treated seriously when she complained about the main instigator of all the above, her manager. Thus, in all the circumstances, the evidence points to the fact that Respondent, at the instigation of her manager was moving toward a position whereby it would deliberately make the Claimant’s position of employment untenable. These circumstances, it is submitted, are crucial when examining the events that precipitated the Claimant’s resignation from employment.

Disciplinary procedure of October 2015

In or around the 5th June 2015 a terminally ill patient was transferred from another Hospital to the care of the Respondent.   The Claimant was part of the Gastroenterology team and was responsible for his nutrition until she went on part of her annual leave on 9th June 2015. She was on annual leave until 12th June 2015.   During this period the patient was seen by another member of staff and supervised by a lead person on the TPN committee. No issues in relation to her care of the patient were raised with the Claimant on her return from leave at the handover on 15th June 2015. The patient passed away on the 13th July 2015 when the Claimant was again on annual leave from 8th July 2015 to 13th July 2015. On 10th August 2015 while leaving to go home her manager asked the Claimant to attend a meeting with her the following day in relation to the patient that had died. The Claimant asked what the issue was and was told it would be discussed at the meeting. On the 11th August 2015, she was subjected to lengthy and questioning about the care provided to the patient, from a list of questions which her manager had prepared.   She would not respond to the Claimant when she asked her what the safety issue was and offered no explanation as to why they were having the meeting. She refused to let he Claimant speak when she tried to talk about the fact that other dietitians had also been involved with the patient.   It is to be noted the Claimant was not afforded any prior opportunity to review the patient’s charts or any notice of what the meeting was about. Her manager refused to have the meeting postponed until the Claimant   had time to go through the patients record card as she could not remember some details Her manager insisted that the Claimant answer her questions.   The Claimant repeatedly indicated that she could not remember specific issues without having an opportunity to review the patient’s dietetic record card which her manager had. Her manger’s reply was of course you can remember. She then handed the Claimant the Patient’s record card and insisted she answer questions. The Claimant felt threated, intimidated and ambushed. The Claimant had asked for another manager to be present to keep minutes of the meeting, but no minutes were kept. The Claimant was handed a closed brown envelope which contained a report dated 17th August 2015 entitled “Case Review” without the Appendices mentioned therein together with a copy of the patient’s dietetic record card.   Her manager directed the Claimant to respond to its contents within one week.     She told her it was “very serious”.   When the Claimant asked her what she meant and what she anticipated happening she stated “that all depends on what you write.” The Case Review made numerous and serious findings of fact against the Claimant and the care she provided to the patient.   The Claimant had never been afforded an opportunity to have any input into the Case Review or address the findings made therein. It is also entirely unclear what, if any, procedure this Case Review was conducted under, there was no information about who conducted the Case Review and in what capacity, nor does it identify any complainants. It is also not clear how many people were involved in compiling the Review. It later emerged that her manager had been responsible in whole or in part for compiling the Case Review and formulating its findings. The Claimant requested an extension of time to submit her comments on the case review, this was caused, inter alia, by difficulties with her legal representative being on holidays. At a meeting on 18th September 2015 she asked to have meeting adjourned until her solicitor’s return and this was refused.   The correspondence issued demonstrates the pressure the Respondent put on the Claimant to submit her responses to the Case Review and particular reference is made to letter of 18th September 2015 which states: As discussed in our meeting today, you are required to provide a written response to the Clinical Specialist by Wed. 23rd September. This is a serious matter. In absence of a written response by 23rd we will have no choice but to progress this matter with HR under the Grievance and Disciplinary Procedure.

The Claimant, concerned about again having her work reviewed for the purposes of being used as a basis for disciplinary action, particularly given the very serious result of the incident in question, engaged legal advisors.   Through her legal advisers the Claimant made numerous requests for information and documentation surrounding the Case Review and its compilation.   Instead of providing the requested information and documentation, the Respondent began disciplinary proceedings against the Claimant on 13th October 2015. By letter of 13th October 2015 the Claimant was informed that an investigation under the Respondent’s Grievance and Disciplinary Procedure would be carried out. Said letter identified, in summary form, the five headings which were the also contained in the Case Review. It should be noted that the contents of this letter, and the Respondent’s conduct in respect of the Claimant’s response, make plain that the disciplinary investigation will use the Case Review and its findings as the basis for disciplinary procedures. On the 15th October 2015, the Claimant was informed by letter that she would not be permitted to treat any patients requiring parenteral nutrition.   If any such patients were referred to her, she was required to inform the Clinical Nutrition Manager who would allocate her to another patient. The Respondent appointed a disciplinary investigation team of the HR Manager, and a Consultant Physician. The Claimant was required to partake in the investigation despite her grave concerns about the procedural fairness of the same and the very real risk the disciplinary process was tainted by irreparable bias and pre-determination. In particular, the Claimant was required to attend an investigation meeting on 21st October 2015 where she requested specifics about the allegations against her. The Claimant was informed that she may as well partake in the investigation because the investigator would be making up their mind regardless and this was last opportunity “to defend herself”.   Despite being informed the allegations were very specific, it was not until a letter of 25th November 2015 that the Investigation Team responded and purported to specify the allegations against her.   It is to be noted that this letter merely recites the findings of the Case Review.   It is also to be noted that by email of 27th November 2015, the Respondent refused to permit the Claimant bring her legal representative to the disciplinary investigation.   Moreover, despite repeated requests, the Claimant was not provided with a patient chart that her manager had omitted to provide her with and which she required to answer the allegations against her. The investigation process itself was also fundamentally flawed. At no point was the Claimant informed who her accuser was (although it would later appear to be her manager to a greater or lesser extent), she was not provided with any witness statements or clinical notes used to prepare the Case Review and she was effectively required to disprove the Case Review without adequate information. The Claimant strongly believed, and believes, this disciplinary process was a sham that had a preordained result of her being dismissed for misconduct.   Two disciplinary meetings took place in December 2015. One on 2nd December 2015 and one on 22nd December 2015. The Claimant was subsequently provided with minutes of these meetings which did not accurately reflect what she had said at those meetings.   The wrongful Conduct And action to which the Claimant was subjected took its toll on her health. She was certified as unfit for work for one week due to work related stress in March 2016 and was certified unfit for work again on 21st April 2016 and was suffering from depression, symptoms of PTSD and severe anxiety.

As a result of the above, the Claimant referred the matter to the Workplace Relations Commission under s.13 of the Industrial Relations Act 1969 (CA-90-001 & CA-90-002). The Adjudicating Officer was clearly concerned about the “extremely troubling elements to the disciplinary process” particularly given the serious allegations of misconduct. By decision of 23rd March 2016, it was recommended that the Respondent cease the current disciplinary process including the restrictions on the Claimant’s care of patients, remove any documentation generated in relation to the disciplinary process from the Claimant’s personnel file, only recommence an external and independent investigation if senior management have a genuine concern over the care given to the patient, appoint an independent mediator to address the difficult relationship between the Claimant and her manager “with a view to finding a satisfactory resolution including if necessary, transfer without any loss of terms and conditions”. By letter of 18th April 2016 the Respondent wrote to the Claimant disputing the factual basis upon which the Industrial Relations dispute was decided and informing her of the steps that would be taken to address the recommendations therein.   In short, the Respondent agreed to cease the disciplinary process but refused to lift the restrictions on the Claimant treating patients. The Respondent made no reference to mediation and, significantly, stated it was going to commission a clinical review of the case.   It is to be noted that, although the clinical review was purportedly to be done per the Adjudicating Officer’s recommendation, there was no reference to Senior Management having a genuine concern about the case. The Claimant was also told that she would be informed when clinical experts to carry out the review had been appointed, it was clear the Claimant would be given no input into the terms of reference of such a review. By letter of 3rd May 2016, the Claimant’s legal advisers sought clarification on a number of matters. In particular, the refusal to appoint an mediator was queried and the detrimental effect same was having on the Claimant’s welfare was noted; the failure to lift the practising restrictions on the Claimant despite the Adjudicating Officer’s report was challenged; the identity of the Senior Manager who expressed genuine concerns of the patients treatment by the Claimant such as to justify the instigation of a further review was sought; whether the review would investigate the circumstances of the original Case Review as per the recommendation; that the original persons who compiled the Case Review would not be involved; and requesting that the Claimant be given an input into the clinical review and could be represented at same. In response, by letter of 23rd May 2016, the Respondent stated it could not force individuals to engage in mediation, the clear implication being her manager refused to go to mediation. The letter also purported to identify senior managers who decided to carry out a clinical review, although it does not identify the reasons how such a decision was reached because of genuine concern or how these persons were involved in the process. This letter also stated that the patient’s overall treatment would be examined as part of the clinical review, however it is far from apparent that any other persons were in fact investigated. Finally, the Respondent merely noted the Claimant’s request for an input into the Terms of Reference and refused her application to be represented.

By letter dated 19th July 2016, the Respondent, having been informed by letter of 12th July that the Claimant had been diagnosed with Post Traumatic Stress Disorder and may have difficulties with mediation, performed a volte face and indicated the willingness to appoint a mediator. It is submitted this is only explainable by the fact the Respondent had, surreptitiously had another clinical report commissioned which made adverse findings against the Claimant. By letter of 4th August 2016, to the Claimant’s solicitors, the Respondent enclosed a clinical review report entitled “Independent Clinical Review” dated 15th June 2016. It appears the Respondent appointed two investigators to conduct the review. Again, the Claimant was given no opportunity to speak to these investigators.   The clinical review made adverse findings in respect of the Claimant, although it is to be noted significantly less adverse than the original Case Review. It is to be noted that the letter of 4th August states the Respondent has “no intentions of pursuing this matter further through the Hospitals Grievance and Disciplinary Policy.” While this was welcome relief for the Claimant, it is to be noted that the report made adverse findings against the Claimant and stated she should be supervised by a senior dietician, exactly the circumstances which caused great distress in the first instance. It is also to be noted that while the Respondent refers to the report being directed at the whole department, it appears only the Claimant was subject to directly adverse findings. The Respondent resigned from employment, having been on certified sick leave due to stress brought about by the circumstances on 25th November 2016.   The Claimant referred to the following matters in particular that caused her resign:

a.      The Respondent proceeding to a clinical review without any input from the Claimant;

b.      The clinical review’s adverse findings without the Claimant being provided an opportunity to answer the accusations against her;

c.      The predetermination of the findings of the clinical review, demonstrated by the conduct of said review and the failure to consider the actions of other staff members;

d.      The failure to fully implement to WRC recommendations in the Industrial Relations matter;

e.      The belated offer of mediation is disingenuous and was only made when the Claimant had indicated she was not medically fit to attend. Moreover, mediation would only have been suitable had the Respondent also dealt with the other recommendations of the WRC;

f.       The continuing damage being caused to the Claimant’s health;

g.      The Claimant’s belief that the Respondent was conducting an orchestrated campaign to make her position untenable.

The context in which this occurred is important. In this regard the factual matrix as outlined above must be considered and also the fact that as a result of the conduct she was subjected to the Claimant’s health suffered greatly and she was suffering from severe stress and depression.   The Claimant was diagnosed with severe stress and a reactive depression by her GP and was prescribed Ciprimol in June 2016. She was seen by a psychiatrist in July 2016 who added Mirlazopine to her prescription. In addition, it became apparent to the Claimant when she received a copy of her personnel files on foot of a Data Protection Request that much of the documentation in support of her position was not in fact out on the personnel file

Unfair Dismissals Act – Constructive Dismissal

Section 1 of the Unfair Dismissals Act 1977 includes the following within the definition of a dismissal for the purposes of the Act: (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, or

Commonly referred to as a constructive dismissal, the above definition deals with two distinct scenarios. Firstly, where an employee is entitled to terminate his contract because of a repudiatory breach of the contract of employment. Secondly, where, despite there not necessarily being a repudiatory breach, the conduct of the employer was such that it was reasonable for the employee to terminate the contract.

In Berber -v- Dunnes Stores[1], which did not consider the Unfair Dismissals Act 1997 but rather whether a dismissal was wrongful at common law, the Supreme Court held the appropriate test was an objective one. Thus, the Supreme Court stated that in determining whether the Plaintiff had succeeded in his claim for wrongful dismissal he had to establish that there has been a repudiatory breach of the implied term of mutual trust and confidence in employment contract and the test requires that the conduct of both the employer and the employee be considered. Finnegan J in giving Judgment for the Supreme Court stated the following:- “There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.” The Court went on to set down the following test:

1.The test is objective;

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

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.

It is submitted the above extracts from the judgement of Finnegan J represents the approach the Commission must take to addressing this case. That is to say, the Adjudicating Officer must look objectively at whether there has been a repudiatory breach or whether the employer has engaged in conduct which made it reasonable for the employee to terminate his or her contract.

The objective nature of this test is of vital importance. The Adjudicating Officer decides whether the conduct of the employer and employee was reasonable, he or she does not have to defer to the reasonable employer standard until considering whether the dismissal was or was not fair. In Mahmud -v- Bank of Credit and Commerce International SA[2] Lord Nicholls of Birkenhead reiterated that the test of breach of a fundamental term of a contract of employment was objective: “A breach occurs when the proscribed conduct takes place.” As Sedley LJ endorsed for the Court of Appeal of England and Wales in Bournemouth Higher Education Corporation -v- Buckland[3], the proper approach for the Adjudicating Officer to take is:

In summary, we commend a return to settled authority, based on the following propositions. (1) In determining whether or not the employer is in fundamental breach of the implied term of trust and confidence the unvarnished Mahmud test should be applied. (2) If, applying the Western Excavating (ECC) Ltd v Sharp [1978] QB 761 principles, acceptance of that breach entitled the employee to leave, he has been constructively dismissed. (3) It is open to the employer to show that such dismissal was for a potentially fair reason. (4) If he does so, it will then be for the employment tribunal to decide whether dismissal for that reason, both substantively and procedurally (see J Sainsbury plc v Hitt [2003] ICR 111 ), fell within the range of reasonable responses and was fair.”

This is based on the fundamental principle that it is the courts who determine whether a contract has been breached. That is not to say reasonableness plays no part, it clearly does and is recognised by the judgment of Finnegan J in Berber; it is merely to say that the “no reasonable employer” does not apply to ascertaining whether there has been a repudiatory breach. As Sedley LJ went on to comment: It is nevertheless arguable, I would accept, that reasonableness is one of the tools in the employment tribunal's factual analysis kit for deciding whether there has been a fundamental breach.   There are likely to be cases in which it is useful. But it cannot be a legal requirement. Take the simplest and commonest of fundamental breaches on an employer's part, a failure to pay wages. If the failure is due, as it not infrequently is, to a major customer defaulting on payment, not paying the staff's wages is arguably the most, indeed the only, reasonable response to the situation. But to hold that it is not a fundamental breach would drive a coach and four through the law of contract, of which this aspect of employment law is an integral part.

The Respondent’s conduct in this case was so unreasonable that the Claimant was justified and acting reasonably when she terminated the employment relationship.

Disciplinary process and clinical review procedure

Instituting disciplinary action will always be conduct on the part of the employer that is capable of destroying the relationship of trust and confidence with an employee, thus where it is not objectively reasonable to institute disciplinary proceedings, for example where there is no evidential basis for same or it is an arbitrary and capricious decision, an employee will be justified in terminating the employment relationship. As the UK Employment Appeals Tribunal held in Hilton -v-Shiner Ltd[4]:To take an example, any employer who proposes to suspend or discipline an employee for lack of capability or misconduct is doing an act which is capable of seriously damaging or destroying the relationship of trust and confidence between employer and employee, whatever the result of the disciplinary process. Yet it could never be argued that an employer was in breach of the term of trust and confidence if he had reasonable and proper cause for the suspension, or for taking the disciplinary action.

It is not suggested in this case that the mere invocation of disciplinary proceedings breached the implied term of trust and confidence. However, the unreasonable conduct of the Respondent in how it dealt with the disciplinary process clearly did. In the first place, as was held by Adjudicating Officer in the Industrial Relations claim, there was serious and fundamental defects in the manner in which the disciplinary process came about.   The Claimant attempted to resolve these issues through correspondence and, eventually, by bringing a claim to the WRC.

Having received a negative decision, the Respondent, against the recommendation of the WRC, re-instituted effectively the same procedure which did not provide the Claimant with the procedural safeguards required. This process resulted in adverse findings against the Claimant’s professional competence which she had no opportunity to dispute.

Thus, permitting a process which results in adverse and damaging findings to be made, without procedural safeguards and with no avenue for redress not only undermines the relationship of trust and confidence, but also is objectively unreasonable. The Claimant was thus justified and acting reasonably in terminating her employment in these circumstances.

Conduct of the Clinical Investigation

As was determined in the Industrial Relations proceedings, it is disingenuous to separate the Case Review and Clinical Review from the disciplinary process. In respect of the Case Review, this formed the effective basis of the disciplinary proceedings and came to adverse conclusions about the Claimant’s professional competence. Similarly, although the Respondent has asserted the Clinical Review will not lead to disciplinary proceedings, it also makes adverse findings about the Claimant’s professional competence in circumstances where she was provided no opportunity to answer those accusations. That making such accusations against a professional person’s competence which have not been subject to a proper investigatory process undermines the relationship of trust and confidence is obvious. In Gogay -v- Hertfordshire County Council[5]the UK EAT considered a case where the claimant was suspended on foot of accusation of sexual assault against a minor. The Tribunal held, para.55: Did the authority's conduct in this case amount to a breach of this implied term? The test is a severe one. The conduct must be such as to destroy or seriously damage the relationship. The conduct in this case was not only to suspend the claimant, but to do so by means of a letter which stated that 'the issue to be investigated is an allegation of sexual abuse made by a young person in our care.' Sexual abuse is a very serious matter, doing untold damage to those who suffer it. To be accused of it is also a serious matter. To be told by one's employer that one has been so accused is clearly calculated seriously to damage the relationship between employer and employee. The question is therefore whether there was 'reasonable and proper cause' to do this.

Similar principles must apply in this case.   For a professional dietician to be told that her professional conduct was below the required standard and resulted in a patient dying is clearly capable of destroying the relationship of trust and confidence. On the question of whether the Respondent was objectively reasonable in so doing in these circumstances, again the answer is clearly no. The Claimant was given no opportunity to provide an explanation for her actions. Moreover, the Respondent seems to have acted completely arbitrarily in investigating only the conduct of the Claimant. The above applies with equal force to the decision to remove the care of certain patients from the Claimant, and the decision to continue these restrictions against the recommendation of the WRC.

Failing to invoke the mediation process in a timely manner

It should be recalled that the Adjudication Officer considered the mediation process recommended as “absolutely essential not only for the welfare of those involved, other staff and patients but also for purposes of avoiding a repeat of the existing situation.” In spite of this, the Respondent made no reference to mediation in the original response to the WRC recommendation, then refused mediation and only agreed to mediation after being informed the Claimant’s health had deteriorated to the extent it was not feasible and when it had a report making adverse findings against the Claimant. In these circumstances it was entirely reasonable for the Claimant to consider the offer of mediation was disingenuous. It is submitted the failure to attempt mediation in a timely and appropriate manner is also unreasonable conduct on the part of the Respondent that undermines the employment relationship. This is all the more so in circumstances where the WRC has expressed the view that the resolution of the difficulties between the Claimant and Ms Brady was necessary in order to protect her wellbeing.  

Reasonableness of the Claimant’s decision to resign

It is submitted that the Claimant’s decision to resign was entirely reasonable.   The Respondent, by its actions had unreasonably acted in such a manner to undermine the relationship of trust and confidence in the employment relationship. Moreover, the Respondent conducted itself in a manner that effectively disregarded the fair and reasoned recommendations of the WRC in the Industrial Relations dispute that may have resolved matters. In all the circumstances, the Claimant was reasonable in concluding the Respondent had no intention of honouring its contractual obligations to the Claimant. The Adjudicating Office is also asked to have regard to the entirety of the Respondent’s behaviour toward the Claimant in this case. It is well established the actions of an employer over the course of time can cumulatively amount to a fundamental breach of contract entitling an employee to resign even where each individual incident, including the last (or "last straw"), did not amount to a breach of contract in isolation, perLewis v Motorworld Garages Ltd[6]. Similarly, in this case, the actions of the Respondent since in or around 2008 are such that the Claimant reasonably has no confidence that the Respondent intends to honour its obligations toward her. Lest be there any doubt, this is not a case where the Claimant failed to exhaust grievance procedures. The Claimant sought to avail of and comply with the Respondent’s grievance procedures previously. As was noted above, the Respondent singularly failed to deal with the Claimant’s personal grievance against her manager. It is also to be noted the WRC considered this was a vitally important matter in the Industrial Relations claim. It would be futile to re-instate such a grievance in such circumstances.   Moreover, the actions of the Respondent in effectively refusing to accept the recommendations of the WRC in the Industrial Relations complaint are also indicative of circumstances where lodging a grievance would be futile.

Similarly, it cannot possibly be said that the Claimant acquiesced to the conduct of the Respondent. At all times the Claimant made clear that she was deeply concerned about how the Respondent was progressing with the investigation into her professional care of the patient. There is voluminous correspondence referenced above and the Claimant went to the trouble and expense of lodging a complaint with the WRC in an attempt to vindicate her rights. In spite of these attempts, the Respondent proceeded head long toward compiling a investigation report which made damaging adverse finding against the Claimant.

In Bournemouth Higher Education Corporation -v- Buckland, the claimant, a university professor, failed a high number of students in the end of year examinations. The papers were re-marked and the original marking was criticised. They were then marked again by a different member of the academic staff with improved results which the chairman of the board of examiners confirmed without consulting the claimant. The claimant complained to the university authorities and an inquiry chaired by a senior academic criticised the university and acknowledged that the third marking should have been undertaken in consultation with the claimant. The claimant nevertheless considered that he had not been exonerated and resigned with effect from the end of the academic year. Sedley LJ stated, rejecting the argument there had been affirmation, para. 54: 54 Next, a word about affirmation in the context of employment contracts. When an employer commits a repudiatory breach, there is naturally enormous pressure put on the employee. If he or she just ups and goes they have no job and the uncomfortable prospect of having to claim damages and unfair dismissal. If he or she stays there is a risk that they will be taken to have affirmed. Ideally a wronged employee who stays on for a bit whilst he or she considered their position would say so expressly. But even that would be difficult, and it is not realistic to suppose it will happen very often. For that reason the law looks carefully at the facts before deciding whether there has really been an affirmation.

55    his case provides a very good example. The repudiatory breach occurred in September—a time when the academic year was just about to start and a particularly difficult time for an academic to leave instantly. The Vinney inquiry was instigated shortly thereafter and it was entirely reasonable (even though he did not think much of the choice of Professor Vinney) for the claimant to wait and see what it said before exercising his right to accept the repudiation. And it was also entirely proper for him to exercise that right by a long period of notice, given the fact that his students would otherwise have been adversely affected mid-academic year. That is why the tribunals below (now unchallenged) held there had been no affirmation, either before or after the Vinney report.

It is submitted the application of these principles should be applied in this case and there was no affirmation in respect of the October 2015 disciplinary process or the June 2016 Clinical Review.

Loss and Damage

The Claimant has suffered significant financial loss as a result of her constructive dismissal.   She was on half pay from 7th July 2016. At the time she was forced to resign she was on a monthly salary of €4,916 gross. Since that time despite efforts to obtain employment she has only managed to get part-time employment and has only earned the total sum of € 9,425.36.   Thus her financial loss to date is in the region of €46,650.64 and given the difficulty she has had in trying to obtain employment this is likely to continue into the future.  

The Claimant has applied for various posts but it would appear that when potential employers contact the Respondent they are discouraged from employing the Claimant. The Claimant supplied a list of post applied for since her constructive dismissal.  

Conclusion

The Respondent has acted in a manner that objectively destroyed the relationship of trust and confidence with the Claimant. The conduct of the Respondent in failing to afford the Claimant even the most basic fair procedures renders the Respondent’s actions unreasonable. Similarly, the agreement to have a matter determined under the Industrial Relations Acts, not appealing the recommendations of the WRC made thereunder and proceeding to simply disregard those recommendations also renders the Respondent’s conduct unreasonable. Taking the entirety of the employment relationship into account, the Claimant was entirely justified and acted reasonably in terminating her employment with the Respondent.

In all the circumstances the Claimant has been dismissed within the meaning of the Unfair Dismissals Act 1977 and there is no justification that can be proffered by the Respondent to make this dismissal a fair one. The Claimant is, therefore, entitled to an award of damages for unfair dismissal.

The claimant is alleging that she was dismissed in breach of the Unfair Dismissals Acts when she resigned from her employment on November 25, 2016. The claimant notified the employer on November 25, 2016 of her decision to resign through a letter from her solicitor.

The claimant is alleging that she was left with no option but to resign as a result of the failure of the Respondent to implement all of the recommendations of an Adjudicator following an Industrial Relations Act dispute, the Respondent proceeding with a Clinical Review without any involvement of the claimant and the alleged failure of the Hospital to engage in mediation to facilitate her return to work. It is rejected by the Respondent that resignation from employment was justified in this case.

The Respondent engaged with the claimant’s solicitor following the issuing of the Adjudicator’s recommendation. They stated in writing on April 18, 2016 to the claimant and her solicitor what it proposed to do following the issuing of that recommendation.   They stated clearly it was not going to implement the Adjudicator’s recommendation in full. They stated in writing at that time it was going to commission an external and independent Clinical Review. This Clinical Review was sent to the claimant’s solicitor on August 4, 2016. On June 27th 2016 the claimant was offered mediation to facilitate a return to work.

If the claimant is seeking to justify resigning then why did she not resign in or around the time she was informed that the Respondent would not implement in full the Adjudicator’s recommendations or at the latest at the time of receipt of the external Clinical Review?

The claimant attended the Occupational Health Physician in June and July 2016. It was recommended by the Occupation Health Physician that mediation be used to facilitate the claimant’s return to work. They contacted the claimant on June 27, 2016 and offered to arrange mediation. The claimant, through her solicitor, continued to engage with the Respondent until July 12, 2016. The Respondent wrote a number of letters to the claimant’s solicitor until August 29, 2016. At no point was it ever suggested that the claimant was considering resigning from her employment for the above reasons.

Background

The claimant commenced employment as a Senior Clinical Nutritionist in February 2006. She reported to the Clinical Nutrition Manager 3, via the Clinical Nutrition Manager, up to the last time she attended work i.e. April 19, 2016. In June 2015 a patient with a history of stomach cancer and with complex medical needs transferred from another Hospital.   The patient was attended to by the claimant in her role as a Clinical Nutritionist. The patient’s treatment needed to be changed over the course of his admission but this did not happen. There were also a number of shortcomings in the record keeping for this patient by the claimant. These details were important to monitor the ongoing treatment required by the patient.   This was brought to the attention of the manager and she reviewed the relevant documentation. The manager met with the claimant and ultimately referred the matter to a Clinical Specialist for review as advised by Patient Quality and Safety Directorate and the HR Director. At the end of August 2015 a report issued and this was given to the claimant for comment. Despite the claimant seeking an extension to make a submission to this report she never did so. Consequently a HR investigation under the disciplinary procedure commenced. In October 2015 the claimant referred a complaint under the Industrial Relations Acts alleging that she had been subjected to effectively a disciplinary matter without full knowledge of the allegations against her and was seeking an independent investigation. The matter was heard by an Adjudicator and the Adjudicator issued a number of recommendations on March 23, 2017 i.e.

·        The respondent cease the current disciplinary process against the claimant including any restriction to her ongoing care of patients

·        Any notes generated in relation to the disciplinary process be removed from the claimant’s file

·        Only if senior management (excluding the claimant’s immediate manager) have a genuine concern in relation to patient safety under the claimant’s care that an external and independent investigation be conducted in accordance with the principles of natural justice and fair procedures. This to include an investigation into the circumstances in which the clinical review arose.

·        An agreed independent mediator be appointed to address the ongoing difficult working relationship between the claimant and her immediate manager.

On April 18, 2016 the Employee Relations Manager wrote to the claimant and her solicitor informing them of the decision on implementation of the Adjudicator’s recommendation. In this letter he stated that

·        The current investigation of the claimant would cease with immediate effect

·        The Hospital will look to commission an external and independent clinical review of the case involving the claimant

·        An assessment of the current procedures for clinical reviews would be done

·        The current restriction surrounding the claimant treating patients who require Parenteral Nutrition treatment would remain in place

On May 3, 2016 the claimant’s solicitor wrote to him. Whilst it does refer to disappointment that the Hospital is not implementing the Adjudicator’s recommendations in full there is no indication that the claimant was contemplating resignation. In fact, at the end of the letter it is stated

“We believe that the Hospital should immediately appoint an independent trained mediator to deal with the issues between our client and her immediate Managers. We believe if the hospital fails to do so our client’s stress will be exacerbated and she may suffer further injury as a result of the hospital’s breach of their duty of care to her.”

Thus, the claimant was seeking to return to work and she saw mediation as a means of facilitating this process. On May 23rd 2016 they responded to this letter. Whilst there was no commitment to mediation set out in this letter they were not in a position to do so as the manager was on annual leave at this time. However, mediation was proposed by the Respondent in a letter to the claimant dated June 27th 2016. In this letter, they committed to sourcing a suitable mediator. This followed the recommendation of the Occupational Health Physician given to management on June 14, 2016. On June 10th 2016 the claimant was written to with a copy of her personnel file. On June 13, 2016 the Clinical Review by the external experts commenced. They issued their report in August 2016.   The external experts did not meet with any members of staff involved in this case or with any other members of the Department of Clinical Nutrition. They simply reviewed the patient’s records and made a number of recommendations in relation to the case dietitian’s management of this particular patient with recommendations to be applied to all staff in the Department. On July 12, 2016 the claimant’s solicitor appeared to suggest that mediation may no longer be an option for his client alleging that there was a reluctance on the part of management to engage in the process. On July 19, 2016 they wrote to the claimant’s solicitor stating that the manager was willing to participate in mediation with the aim of facilitating an early return to work for the claimant.

In a further letter of August 4, 2016 to the claimant’s solicitor Mr O’Sullivan stated that he hoped that the claimant would participate in mediation. The letter states that the Hospital had been in contact with the mediation service of the WRC to facilitate this process. (Copy of letter in appendix 13). The letter goes on to state that the claimant was a valued member of staff and the objective of the Hospital was to facilitate a speedy return to work and that the Hospital had no interest in pursuing an investigation under the disciplinary procedure in relation to the claimant concerning the treatment of the patient in June 2015. A copy of the external expert review was enclosed with this letter. The facilitation of the claimant’s return to work was reiterated in a further letter of August 29, 2016. The letter stated that they were open to meeting with the claimant to discuss any issues in relation to returning to work. Nothing further was heard from the claimant until her resignation letter of November 25, 2016 was received. In this letter, it is alleged that the claimant was forced to resign from her position with the Respondent. This is the first time that they were aware that the claimant was leaving its employment.   She had never indicated this in any previous correspondence. In this letter, it is alleged that they refused to engage in mediation. This is untrue. They had agreed to mediation and had informed the claimant that it had made contact with the WRC mediation service in this regard. It is also stated in the resignation letter that a Clinical Review took place without any input from the claimant.   However, the claimant was aware of the outcome of this review since early August 2016. If the claimant was considering resigning for this reason then they should have been put on notice of this at the time. The Hospital accepted the claimant’s resignation by letter dated November 29, 2016.

The Law

Section 1 of the Unfair Dismissals Act defines constructive dismissal in the following manner“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 the case Noonan Services Group Limited v Michelle O’Connor (Determination No UDD1743) the Labour Court stated that the burden on the claimant in an alleged case of constructive dismissal is ‘high’. In this case the Court stated, “The Act places a high burden on a Complainant in a constructive dismissal case. In order to succeed in such a claim, a Complainant must establish that either a breach of contract by the employer going to the root of the contract has occurred or that the employer’s unreasonable behaviour was such that she was justified in believing that she could not continue any longer in that employment. Furthermore, it is incumbent on an employee who believes themselves to be in such circumstances to alert the employer to her situation (for example, by availing of the employer’s grievance procedure) in order to allow the employer an opportunity to rectify the problem before resigning.”

The claimant in this case has not established that it was reasonable for her to resign from her employment at the end of November 2016. She had given no indication that she was contemplating this and had been engaging with the Hospital through her solicitor since April 2016 about a return to work.

In the case G4S Secure Solutions (Ire) Ltd v Dominic Shine (Determination No UDD1744) the Labour Court stated, “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 normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (see Conway v Ulster Bank LimitedUDA474/1981).”

The claimant was engaging the Respondent about a return to work for a number of months.   She sought and was offered mediation to facilitate a return to work. However, she never engaged in this process although she herself had sought this as a means to facilitate a return to work. She was also informed that the Hospital was open to meeting with her to discuss any issues in relation to returning to work. Again, she never followed up on this offer from the Hospital. Thus, the claimant did not act reasonably in this case.

In Beatty v Bayside Supermarkets UD142/1987, in referring to the need to utilise the grievance procedure, the Employment Appeals Tribunal held:- “The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

Again, the failure of the claimant to engage fully concerning a return to work was unreasonable. She did engage for a period but ceased to do so and then simply notified the Respondent of her decision to resign.

Respondent Case

The onus is on the claimant to show that she was justified in resigning from her employment in November 2016. The Employment Appeals Tribunal and the Labour Court in dealing with cases of constructive dismissal under the Unfair Dismissals Acts deem adhering to internal policies as crucially important.   Failure to exhaust the internal process is fatal to the claimant in these types of cases. If the claimant was considering resigning from her employment then she should have informed the Respondent of this fact.   Furthermore, she could have appealed any part of the process to more senior management in the Hospital. The claimant had the advice and support of her solicitor during this whole process. The claimant did not utilise the grievance procedure nor the dignity at work policy in relation to issues concerning her manager at this or at any other time. Following the issuing of the Adjudicator recommendation the Hospital made it clear in April 2016 of its position in relation to those recommendations. Mediation was offered to the claimant in relation to her ongoing work relationship with her manager. The Respondent offered to meet the claimant to discuss any concerns she may have in relation to return to work. The issue of the Clinical Review by external and independent persons was known to the claimant some 4 months prior to her resignation. If this was a contributory factor in her decision to resign then it surprising that this was not stated previously. Therefore, if the claimant was prepared to stay on in the employment of the Respondent following their decision in relation to the Adjudicator’s recommendations, the fact that she was not offered an input in relation to the external independent Clinical Review and was offered mediation then this calls into serious question the justification for resignation at the end of November 2016.

The first time that the claimant made an allegation that there was a concerted plan designed to force her to resign from her employment and that the Hospital had predetermined the outcome of the matter is in her letter of resignation.

For all of the above reasons the Respondent is requesting that the Adjudicator reject this complaint and determine that the claimant acted unreasonably in resigning from her employment.

Findings and Conclusions:

Definition of Constructive Dismissal.

Sec 1(b) “the termination by the employee of his/her contract of employment with his/her 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 a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition there must have to be something wrong with the employer’s conduct.

In UD 1146/2011 the EAT held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

It is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve her grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

Tierney v DER Ireland Ltd UD866/1999 “central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.

I note in the EAT case John Travers v MBNA Ireland Ltd [UD720/2006] it stated, “We find that the claimant did not exhaustthe 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”.

The EAT in Donnegan Vs Co Limerick VEC UD828/2011 stated,”In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace”. Also the respondent’s conduct was “not so unfair or so damaging to the claimant’s rights and entitlements that she hid no option but to resign her position”

Murray v Rockavill Shellfish Ltd [2002] 23 ELR 331 the EAT stated, “It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.

The Labour Court UDD 1635 Mary Kirrane v Barncarroll Area Development Co Ltd stated, “Where constructive dismissal is contended for it is for the person making the claim to establish that the behaviour of the employer was such as to leave the appellant no alternative but to terminate the employment or that the employer’s behaviour has fundamentally undermined the employment relationship. The person claiming constructive dismissal has an obligation to access available grievance procedures in a course of attempting to deal with whatever situation has led to consideration of termination of the employment”.

In McCormack v Dunnes Stores : EAT UD 1421/2008, the Tribunal stated, “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 employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

Procedural Matter

I have serious concerns about how the Complainant has been treated by this employer.

I note that following issues being raised and grievances being raised the problems with the working relationship between the Complainant and her manager continued.

I find that this relationship was crying out for mediation for a long time.

I find that the Respondent failed to address this on-going issue.

Following the death of an elderly patient the Respondent was obliged to investigate it.

I note the conflict of evidence regarding how the investigation was initiated.

I find that the Complainant had serious concerns that her manager was going to use this as an excuse to raise a possible disciplinary sanction against her given her concerns about the working relationship.

On the balance of probability, I find that the Respondent should have carried out this review in a more open and informal fact finding atmosphere.

I find that the Complainant was not given ample time to prepare for the investigation meeting.

I note that she sought legal assistance and this was denied, as legal representation at an investigation stage is not allowed by this Respondent.

I note that the Complainant cited the High Court Decision in Longford Westmeath Education and Training Board. I find the circumstances of that case to be quite different to this one, in that company, legal representation was allowed.

I am conscious of an alternative finding in the Supreme Court decision Crayden Fishing Co Ltd v Sea Fisheries Protection Authority & ors [2017] IESC 74, dated 12/12/2017.

I conclude that it is highly unusual to have legal representation at an investigation stage and it is clear that this Respondent does not provide for this in their procedures.

Therefore, I find that the Complainant should have taken part in the investigation meetings with an approved representative.

However, this incident further shows the deterioration in the working relationship.

Ultimately, she was given one week to respond to the Case Review into which she had no input.

She was instructed in writing not to treat any patient requiring parenteral nutrition.

I find that this decision to restrict her treatment of patients could have been implemented in a much more acceptable manner to the Complainant.

I note that it is the Complainant’s position that it was not until 25th November 2015 that she was fully informed of the allegations made against her.

I note that because of her concerns about how this investigation was conducted she referred a complaint to the Workplace Relations Commission (WRC) under the Industrial Relations Act.

Also, I note that she asserted that she was unaware of who made the accusation against her.

I note that the Respondent implemented most of the Adjudication Officer’s recommendations except they did not lift the restriction on patient treatment because this was supported by the Clinical Consultant.

I note that the Complainant has sought mediation but the Respondent’s manager did not initially agree to it.

I then find it that it was ironic that the Respondent should enquire if the Complainant was agreeable to mediation when the manager ultimately agreed to it, given the fact that the Complainant had previously agreed to it.

I note that the Clinical Review was a documentation review and nobody was spoken to, nor the terms of reference agreed. The Complainant had no input into the Clinical Review or its terms of reference.

I note that despite the fact that the Respondent had assured the Complainant that they would not pursue the matter through the grievance procedure it was not enough to assure her of her position.

Overall on the balance of probability I find that the responsibility rests with the Respondent to address the working relationship.

I find that they failed to deal effectively with these on-going issues over the years

I find that the Respondent allowed this relationship to fester to such a point that the trust was damaged.

While I find that the Complainant has contributed to this nonetheless, I find that the ultimate responsibility rests with the Respondent.

Consequently, I find that procedurally the Complainant was justified in resigning her position.

Decision:

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.

For the above stated reasons, I have decided on procedural grounds the Complainant was justified in resigning her position.

Therefore, I have decided that she was constructively dismissed.

I have decided that compensation is the appropriate redress.

I have decided that the Respondent should pay the Complainant compensation of €27,000

(26 week’s pay approx.) to be paid within six weeks of the date below.

Dated:  14 February 2018

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Key Words: