EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Nuala Doherty (ND) - Claimant 1 UD1451/2014
Mairead Higgins (MH) - Claimant 2 UD1454/2014
Against
Sligo Social Service Council Limited - Respondent
Under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Dr. A.M. Courell B.L.
Members: Mr. D. Morrison
Mr T. Gill
heard this claim at Sligo on 19th April 2016
and 29th June 2016 and 30th June 2016
and 6th September 2017 and 7th September 2017
and 3rd and 4th January 2018
Representation:
Claimants: Mr. Diarmuid Fawsitt BL instructed by:
Mr. Barry Bowman, Bowman McCabe, Solicitors, 6 The Mall, Lucan,
Co. Dublin
Respondent: Mr. Damien Higgins BL instructed by:
Mr. Bryan Armstrong, Hegarty & Armstrong, Solicitors, Top Floor,
Millennium House, Stephen St, Sligo
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Note: It should be noted all correspondence referred to which was available was opened to the Tribunal during the course of this hearing.
This claim was heard in conjunction with UD1454/2014.
Background:
Both claimants were Social Workers who say that behaviour of respondent was so unreasonable that their positions became untenable and they had to resign. As a case of constructive dismissal it fell to the claimants to go into evidence first.
Claimant’s Case:
Claimant 1
ND (Claimant 1) told the Tribunal that she began her employment in 1992 and felt that regretfully she had no option but to resign in April 2014. She outlined the type of work that she undertook as a Social Worker and the aspect of group work that developed with her colleagues. She said that the system developed into group supervision and that forum became very beneficial to all. ND said it was a place where respectful sharing of views took place, and there was great comradery and co-operation between all. In 2008 a managerial change took place and things changed drastically.
CMcT took on the role as Director of Services, ND said she spoke to some of them and ignored others. ND said it seemed to be a deliberate tactic to divide staff. At a staff meeting in May 2009 there was an open, honest sharing of feelings in relation to the new Director and a few days later SC (the Team Leader) informed ND that she had advised the CMcT of the concerns of the group, as outlined at the meeting. ND said she was shocked and stunned. Meetings were a confidential space (a supportive environment) where problems could be discussed. ND told SC that what she had done was inappropriate and from then on any trust in SC was gone.
CG took on the supervision role and they continued to work with him successfully as a team/ group until April 2011. SC then reverted back to Team Leader so supervision was available but only with SC, and the formant of group supervision was gone without anyone’s knowledge. It was unclear whether SC was a Supervisor, Team Leader or Manager. ND said that a Team Leader would supply support and they definitely had none. Various meetings ensued but the issue of group supervision could not be resolved. During the meetings SC said she felt bullied and harassed by them and ND said SC was prone to outbursts of anger which were totally uncalled for.
From early 2012 four members of staff (group – ND, MH, DD and MW) continued to submit letters and meetings appeared not to have progressed the issues any further. By October 2012 the trade union were involved and wrote to the Chairman of the society (BMcM) asking him to urgently meet with a view to resolving issues. BMcM refused to meet and said the matter was being dealt with through the grievance procedure.
The union wrote again on 13th November and a meeting was held in January 2013. Mediation was suggested but by May 2013 BMcM was unhappy with the person nominated and said that he failed to see why mediation was necessary. The union wrote again in July 2013 advising that matters would be formally escalated if an agreement on mediation was not reached. BMcM replied saying he would reply to the issues, this didn’t happen and again the union wrote with a new deadline of 1st November 2013.
In reply to that letter BMcM concluded that (as per his conversations with CG and CMcT) there were no outstanding issues, there was no need for mediation and no need to proceed with anything further. ND told the Tribunal that that was the final nail in the coffin. They (the complainants) had never been asked or given a chance to refute anything that had been said and didn’t. Her health deteriorated from the stress of it all and she and her colleague handed in notices of resignation in April 2014 giving one month’s notice. The letter was also cc’d to other parties.
ND gave evidence of her efforts to mitigate her loss of earnings.
CD gave evidence of working with the organisation for 39 years, mainly as accommodation manager, he has now retired. The organisation was run by a religious organisation but with the departure of MH the last of the religious directors 2009 they were told that the job would probably go to a lay person and to prepare for a period of transition. Up to that time Social Workers got one to one supervision with 3 directors (religious) on a weekly basis. SC was appointed as Team Leader, there was a move to group supervision and SC also helped to fill the role of director until one was appointed some 18 months later.
CMcT then came to the organisation, she had external experience but after working with MH for so many years she was treated with some trepidation he thought. At a meeting in May 2009 all members present expressed their concerns with CMcT. CD said people would not have been so vociferous if they had thought that the meeting was not confidential.
The following day SC came to his office and told him she felt duty bound to let CMcT know what had been said. He told her it was unethical, unprofessional and a total breach of trust. From that moment on her role was of no value to him, the workload was tough enough without internal conflict. She was not providing support (which was a huge void in the organisation) and her anger was always palpable.
When the matter was handed to BMC he asked that the letters not be copied to the board which was a total variance to protocol, he suggested CG as facilitator who had defended SC so his position was totally compromised and did not reply initially for 9 months which was indicative of his behaviour. CD said he knew the girls were considering having to resign, he talked to them and their families but there was no resolution.
Claimant 2
MH (Claimant 2) gave detailed evidence of her employment history. She commenced employment with the respondent as a Social Worker in 2007 and told the Tribunal that she “loved her work.”
CMcT took over as Director in 2009 and had a different approach towards work than to her predecessor and had a “different” attitude. CMcT often didn’t speak to her and her colleagues. The atmosphere was different to before.
Supervision meetings were introduced and MH said she was in attendance at the meeting of May 2009 were certain issues were discussed including those concerning CMcT. These meetings were supposed to be confidential and she, and her colleagues, were shocked to find out SC had discussed some of these issues with CMcT. MH said she felt she could no longer trust SC which was a major issue with SC being her Team Leader. It was a very difficult situation to be in.
The group (MH, ND, DD and MW) aired their concerns but with one set back after another nothing was done until 2011. During this time CMcT was absent on maternity leave and SC was upgraded. This lead to a new Team Leader being appointed and everything seemed to run more smoothly. MH said this Team Leader was more approachable and seemed to listen to any of their concerns regarding work.
In April 2011 it was agreed that group supervision would cease with CG. MH explained that during this time the relationship “festered” with SC and “had not gone away.”
The group approached SC to request to resume supervision meetings with CG. SC said she would discuss the matter with CMcT.
In October 2011 MH and MW met SC and discussed the issue of “broken trust.”
In December 2011 another meeting was held with the group, SC and CMcT. SC was very angry at this meeting which surprised the group. Following the meeting the group met with CMcT to voice their concern.
In January 2012 SC wrote to the group and apologised for her manner at the previous meeting. MH told the Tribunal that she felt let down by everything. It appeared CMcT supported SC’s behaviour as she had said nothing to SC at the meeting in December.
The group replied to SC’s letter. However, it seemed nothing changed but she felt she “had to go on.”
By April 2012 the group had attended several meetings but, again, nothing was resolved.
Following this CMcT handed over the matter to BMcM formally. MH told the Tribunal that the group seemed happy with this.
Having received no correspondence from BMcM, the group wrote to him on the 23rd of July 2012 to ascertain what was going on.
BMcM replied on the 8th of August 2012 to request individual written reports from the group regarding their issues. BMcM did not apologise or give any reason why it had taken him three months to correspond with them.
Letters passed between BMcM and the group. BMcM requested they correspond with him directly and not the Board as they had done. He also requested they write to him individually and not as a group.
MH said that she felt BMcM did not require any more information as CMcT would have informed him of their concerns when he had taken over the matter.
The group requested an independent facilitator be put in place to resolve the issues.
As nothing was resolved as this point the group (now consisting of MH, ND and DD) went to their union. Correspondence crossed between BMcM and the union. A meeting also took place and it was agreed mediation would take place. However, an independent facilitator could not be agreed.
BMcM issued his findings that found no breach of confidentiality.
MH told the Tribunal that she could not believe this. She felt the relationship had completely broken down and the atmosphere was tense. She felt it was untenable to work there any longer and submitted her resignation in April 2014 giving one month’s notice.
MH gave evidence of her efforts to mitigate her loss of earnings.
PF, a Trade Union representative, and RC, a Trade Union Senior Officer, gave evidence. PF told the Tribunal that he received a call from with ND or MH informing him they and their colleagues and a difficulty with the respondent.
The union became involved and correspondence crossed between the union and BMcM regarding their members issues. Matters did not progress at first.
RC met the complainants (ND, MH and DD) who were “quite distraught”. RC met with BMcM and following a lengthy meeting a process of mediation was agreed. The union proposed a facilitator who was rejected by the respondent.
RC told the Tribunal that they had tried their hardest to resolve their members issues but said the respondent “just shutdown”.
RC and PF told the Tribunal that they felt the claimants had no option but to resign their positions.
Respondent’s Case:
SC, Senior Manager and Team Leader to the two claimants, gave evidence.
She commenced employment with the respondent in 1986 and was promoted to Team Leader in 2009. CMcT joined the organisation in 2008.
SC explained that she did give one to one supervision to staff as Team Leader and group supervision commenced with CG in 2009. At these meetings all aspects of work and opinions were discussed. At one particular meeting in May 2009 opinions were raised concerning CMcT by the group. CG said he would speak to CMcT and no-one raised an objection.
SC spoke to CMcT before the next meeting in June about some concerns raised at the previous meeting and told all present at the June meeting. MH said that she felt she had been “left hanging.” Following this a decision was made to cease the Social Workers review meetings but the Social Workers continued to meet with CG without SC.
In late 2011 MH and MW asked to meet SC to request supervision meetings with another facilitator to CG as he “was not for them.”
A meeting was held later that year with the group (MH, ND, DD and MW) regarding the breach of confidentiality in May 2009. She asked the group how they could them all moving forward and they replied that they did not know. SC explained to them that there was a grievance procedure in place and if they had an issue they could speak to CMcT. The group said they had other issues, including communication. SC said she was surprised to hear this as it had not been raised with her before. SC advised them if they had an issue with CMcT they could go to BMcM.
The group requested to speak to CMcT.
SC told the Tribunal that she then spoke to DD as she had been attending mediation with him.
A further meeting took place in November 2011. MH read from a script. SC told the Tribunal that she was annoyed at this meeting and “taken aback”. CMcT took over the meeting. SC said she recalled suggesting they take the informal route to try resolve issues but was unaware what the group wanted at that point. However, it was agreed to go into a process and DD and CMcT would agree a facilitator.
SC told the Tribunal that she regretted her reactions at the November meeting and apologised by letter to the group.
A further meeting took place in March 2012. At this meeting ND read from a script on behalf of the group. Again issues were not resolved. CMcT referred the matter to BMcM.
In August 2012 BMcM wrote to all parties concerned asking for their detailed account of events. SC submitted her report.
By 2013 matters remained unresolved with three out of four of the original group. MW had resolved her issues with the respondent through mediation.
BMcM’s investigation concluded in December 2013 when he issued his findings of no breach in confidentiality.
Under cross-examination SC said she had had a good working relationship with the claimants in the past and no issues had been raised regarding supervision.
When asked, SC said she had not experienced any difference in atmosphere, fear or confusion.
When asked if the group had asked her permission to speak to CMcT regarding the meeting of May 2009, she replied that she had not but felt she had not needed it.
CMcT gave detailed evidence of her employment history. She joined the employment of the respondent as the first lay Director in 2008. The review process commenced in 2008 with the inclusion of Social Workers in 2009.
Following the meeting of May 2009 SC told her the group (MH, ND, DD and MW) had concerns. CMcT told the Tribunal that she was surprised but happy to review the process. However the group felt they could not more forward until their issues were dealt with and required time to consider it. Finally it was agreed CG would meet with them.
CMcT told the Tribunal that she expected eventually they could all sit down and work through the issues. However, this did not happen due to various reasons and the matter was not dealt with again until 2011.
In 2001 CG suggested a supervision meeting but the group had “disconnected” from him. In August 2011 CMcT spoke to ND who stated there were still issues to be dealt with but CMcT said she felt she got the sense “people wanted to move on.”
A meeting was held in November 2011. The atmosphere was upsetting for all, it seemed. CMcT told the Tribunal that she still felt they could all move forward.
In December 2011 the group informed CMcT that they were unhappy with SC’s reactions at the meeting in November. CMcT suggested they put their concerns in writing.
SC wrote to each member of the group and apologised for her reaction at the meeting in question.
A meeting took place in March 2012. ND spoke on behalf of the group stating they felt their issues had not been dealt with. SC reiterated her apology for any upset caused.
CMcT told the Tribunal that at this point the only way she could see the matter moving forward was to go down the formal route and informed the group. No-one objected.
In April 2012 she handed the matter over to BMcM.
Under cross-examination CMcT stated that the group (including the claimants) never formally put their grievances in writing.
When asked she stated that she had given her report of the events to BMcM as requested by him.
BMcM gave evidence. He stated the matter was handed over to him formally by CMcT in April 2012, however, as Chairman of the Board he was aware staff had some issues.
In August 2012 he wrote to all parties concerns and requested they put their version of events in writing. He told the Tribunal that there was an inordinate delay in his communicating with the parties but this was due to various reasons he outlined on the day of this hearing. He agreed that he “had not acted quick enough.”
He received a report from CMcT and SC. He again wrote to those concerned. BMcM said, in total, he wrote six letters to each party between August and December 2012. However, no other reports were submitted except for MW. Meetings was set up with two Board members and MW and her issues were resolved.
The remainder of the group – MH, ND and DD went to their union. The union wrote to BMcM and over time correspondence crossed between the two.
BMcM met with CG who would not divulge what had occurred at the May 2009 meeting but when BMcM put SC’s account of it to CG, CG said it was accurate.
Despite meeting with the group’s union and letters sent to request reports the matter could not be resolved. BMcM finalised his investigation and found there was no breach of confidentiality. He issued his findings to all parties.
Under cross-examination BMcM stated that he was aware of some of the issues concerning the parties but without specific details he could not appoint a facilitator to resolve the matter. The group would not give him the specific details of their complaint.
BMcM refuted he had approached MW to resolve her issues and stated he had approached her.
When asked, BMcM stated that he had been annoyed when he had seen who the claimants’ had cc’d their letters of resignation to.
MW gave detailed evidence of her employment history.
She stated that she had been part of the original group of complainants who had attended the meeting of May 2009. However, she had been excluded by the group some time later but could not explain to the Tribunal why this had happened as the remaining group (MH, ND, DD) had not explained the reason to her.
When she received a letter from BMcM requesting her version of events she submitted her report. She agreed to meet two members of the Board to discuss her issues and resolved the matter to “her satisfaction.”
When asked, she agreed DD had not resigned his position as the claimant’s had.
Determination:
The claimants resigned their positions as Social Workers with the respondent on the 1st of April 2014 and claim that they had no option but to tender their resignations because of the conduct of their employer.
The law in relation to constructive dismissal is well established and the question for the Tribunal is whether, or not, the decision to resign was reasonable because of the conduct of the employer.
The claimants’ difficulties had their origin in an alleged breach of confidentiality by their Team Leader (SC). The claimants took major issue with the divulgence of matters which were discussed at a group supervision meeting in May 2009. The claimants attempted to resolve their issues under the orbit of group supervision but in April 2011 decided group supervision was not working.
The claimants made their employer aware that they had a difficulty with their Team Leader and they were initially offered an informal means of dealing with their complaint. Ultimately, the matter was referred to the Chairperson of the Board (BMcM) in accordance with the formal grievance procedure. There was a delay on the part of the Chairperson in commencing his investigation. The claimants found this delay to be very frustrating and the Chairperson apologised for same. Thereafter, the Chairperson made every effort to deal with their complaint.
The Chairperson asked the claimants to put their issues in writing. The claimants’ grievance involved another member of staff which if upheld would have had serious consequences including disciplinary action. In the circumstances, the Chairperson acted appropriately and in accordance with procedure requesting the claimants put their complaint(s) in writing. The claimants’ failure to put their complaint in writing hampered their employer’s ability to resolve the issue. It is worth noting that another employee (MW) who put her complaint in writing had the mater resolved to her satisfaction.
In the absence of written clarification from the claimants in relation to their complaint(s), the Chairperson investigated the matter to the best of his ability. Following his investigation, he decided that there had not been a breach of confidentiality on the part of SC. Following his decision, the claimants resigned
In all the circumstances and notwithstanding the delay on the part of the Chairperson in initiating the formal process, the Tribunal is of the view that employer acted reasonably in attempting to deal with the claimants’ issues. On the other hand, the claimants failed to properly engage with the internal procedures available and instead invoked the extremely drastic option of resignation.
The Tribunal finds that it was unreasonable for the claimants to have resigned and they have failed to prove that they were constructively dismissed.
Accordingly, their claims under the Unfair Dismissals Acts, 1977 to 2007 fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)