FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : TUSLA CHILD AND FAMILY AGENCY (REPRESENTED BY MASON HAYES & CURRAN) - AND - CATHERINE FLYNN (REPRESENTED BY ESA CONSULTANTS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision no: ADJ-00005216.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 10 August 2017 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 23 January 2018. The following is the Determination of the Court:
DETERMINATION:
This is an appeal against the Decision of an Adjudication Officer under the Unfair Dismissals Acts 1977 – 2015 (the Acts) in a claim made by Ms Catherine Flynn against her former employer, Tusla Child & Family Agency, where she alleged that she was constructively dismissed. By decision dated 5thJuly 2017, the Adjudication Officer held that the complaint was not well-founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Catherine Flynn will be referred to as “the Complainant” and Tusla Child & Family Agency, will be referred to as “the Respondent”.
The Complainant referred her case to the Workplace Relations Commission on 27thSeptember 2016. The appeal came before the Court on 23rdJanuary 2018.
Background
The Complainant commenced employment with the Respondent as a Temporary Residential Care Staff in the High Support Unit, Crann�g Nua, Portrane, County Dublin on a nine-month fixed-term contract, commencing on 20th March 2006. Her employer at the time was the Health Service Executive. The Complainant's fixed term contract was renewed in December 2006. Subsequently, the Complainant's appointment became permanent with effect from 1st June 2007. The Complainant resigned from her employment on 1stApril 2016.
The Respondent was established under the Child and Family Agency Act 2013 on 1stJanuary 2014. The Child and Family Agency encompasses the former HSE Children and Family Services, the Family Support Agency and the National Educational Welfare Board in addition to incorporating some psychological services and a range of services responding to domestic, sexual and gender based violence.
Summary of the Complainant’s Case
Mr Joe Bolger, ESA Consultants on behalf of the Complainant submitted that the
Complainant had no option but to resign her position on 1stApril 2016 due to the working environment. He said that the Complainant had set out the grounds of her resignation in an email on 4thApril 2016, which followed a meeting with the Respondent held on 1stApril 2016. He submitted that the Respondent did not investigate the reasons of the resignation and or try to establish its cause, and he contended that it should have offered her alternative reasonable accommodation. He said that the Complainant was not physically or mentally in a positionto fulfil her role due to a range of issues, least of all some personal problems.However, the change to her contract from a temporary move to now apermanent move and change to the benefits contributed to her frustration.
Mr Bolger said that the Complainant was seeking re-instatement or re-engagement, if not then at least compensation.
Mr Bolger accepted that the Complainant was provided with written terms and conditions of employment which referenced a grievance procedures, as follows: -
- "You have the right to seek redress in respect of any aspect of
your terms and conditions employment under the Health Service
Executive Dublin North East grievance procedure.Should you
have a grievance you should follow the grievance procedure
which will be issued to you on commencement of your
employment."
He said that in or around June 2014 the Complainant was transferred from Portrane to Ballydowd Special Care Unit in Lucan, CoDublin. The Complainant along with her colleagues was represented by her Union during this process. He contended that the Respondent was not entitled to make such changes and therefore unilaterally altered the Complainant’s contract of employment. Mr Bolger accepted that the Complainant was moved and she complied with the instructions of the Respondent, however at all
materialtimes he contended that she was led to understand that this move was temporary.The Respondent indicated that the transfer was due to renovations of Crann�g Nua which should be completedby December 2014. Staff were paid travel time and mileage expenses during this period.These payments were ceased in December 2015, without transferring back to Portrane.
However,in December 2015 Mr Bolger said that the Respondent wrote to the Complainant and her colleagues to inform them that the following benefits/expenses would cease: travelling time payment to and from work in Ballydowd; payment of aggregated hours - premium hours worked would be paid instead; mileage and tolls. It also stated that rosters may change from January 2016, permanent transfers from special care would continue to be offered based on permanent vacancies becoming available and on recognisable service that staff members have worked.Mr Bolger submitted that all these factors contributed to the Complainant’s decision to resign.
Mr Bolger also submitted that the change to the Complainant’s hours of work in January 2016 constituted a breach of contract and gave rise to constructive dismissal.In support of this contention he citedDal v A S Orr[1980] IRLR413.
Mr Bolger submitted that the Respondent failed in its duty of care to the Complainant.He said that in June 2011, the Complainant was assaulted by a service user and as a result she was absent from work until 7th February 2012which absence was covered by the Serious Physical Assault Scheme.He referred to that fact that on 5thDecember 2015 the Complainant was assaulted for a second time during the course of her employment and was on sick leave until 20thJanuary 2016as a result. He said that the Complainant was not entitled to further sick pay and was forced to return to work. Mr Bolger contended that the fact that the work environment had inherent risks did not discharge the Respondent's duty of care by simply providing training.He submitted that the Respondent knew or ought to have known there was a high risk and failed to follow a Standard Operational Procedure (SOP).
CitingBerber v Dunnes Stores Ltd [2009] ELR,Mr Bolger submitted that theRespondent had failed to accommodate or provide facilities to protect the safety of the Complainant and other staff members. Mr Bolger said that inBerberthe Supreme Court was satisfied that the injuries were caused by workplacestress and that injuries were foreseeable unless reasonable care was taken. The Court cited Lady Justice Hale
in Hatton: -
- “Itis essential therefore,once the riskofharmtohealth from stress in the work place is foreseeable and that harmofthat kind has taken place, togoon toconclude that the employer was in breachofhis dutyofcare in failing to prevent that harm (and that the breachofduty caused the harm) But in every case it is necessarytoconsider what the employer not only could but should have done."
Mr Bolger citedRank Xerox LtdvChurchill(7988)IRLR p280,wherethe
English Employment Appeals Tribunal, in dealing with a case where an employee wastransferred pursuanttoan express transfer clause, held that in determining where under his contract of employment an employee can be required towork,the correct analysis of the terms and conditions of employment are the same as that indicated by the Court of Appeal inWesternExcavating (ECC) LtdvSharpin respect of constructive dismissal, that is, throughcontractandnotthrough the overall superimpositions of a test of reasonableness. Thus, he surmised that according to the decision of the Court in that case, no question of reasonableness arises for consideration where an employer transfers an employee pursuant to an express transfer clause.
He also referred to the matter ofWaltons&MorsevDarrington [1997J IRLR 488a secretary employed by a firm of solicitors claimed constructive dismissal as a result of problems she encountered with smokers in the office. A limited smoking policy was adopted by the firm but this did not lead to a sufficient improvement for Mrs Dorrington. She succeeded with a constructive dismissal claim. The UK EAT held that the employer was in breach of implied term in her contract of employment that the employer would“provide and monitor for employees, so far as is reasonable practicable, a working environment which is reasonably suitable for the performance by them of their contractual duties."
Summary of the Respondent’s Position
Ms Christine West, Solicitor, Mason Hayes & Curran Solicitors on behalf of the Respondent denied the allegation of unfair dismissal.
Ms West said that following the assault in 2011 the Complainant was absent from work and was paid in accordance with the Serious Physical Assault Scheme. This meant that the Complainant's sick leave was unaffected by this period of leave and she was paid as if she was working at the unit. During her absence, the Complainant was referred to Occupational Health to assess her fitness to return to work. The Occupational Health Physician assessed her as having developed an"adjustment reaction disorderas aconsequence of this assault.”And reported that she had informed himthat"at this point she would have reservations about ever being able to return to aHigh 'Support
Unit'."
Ms West said that following on from this report, the Respondent explored the possibility of alternative positions for the Complainant, however, the Complainant did not have a Social Care qualification, therefore the range of alternative positions available to her were limited. Positions as Health Care Assistant and Hostel Based Nurse Attendant were offered to her but she chose not to avail of these options. The Complainant returned to work on 10th February 2012.
The Complainant had a number of absences from 6th August 2012 until 26thJune 2015. These absences were for a variety of reasons including maternity leave, force majeure leave, annual leave etc..
Ms West told the Court that on the establishment of the Child and Family Agency on 1st January 2014, the employees of Crann�g Nua and Ballydowd transferred to the Agency. While the Complainant was on carer's leave, she was advised, together with all employees in Crann�g Nua, that it was to be closed as a High Support Unit, it would be redeveloped and reopened as a Special Care Unit. In May 2014 staff were reassigned on a temporary basis to Ballydowd, a Special Care Unit in Lucan, pending the re-opening of Crann�g Nua. Ms West said that there was no option for staff to be made redundant in accordance with public sector agreements.
Ms West disputed the Complainant’s contention that her reassignment to Ballydowd on a temporary basis amounted to a unilateral alteration of her contract of employment. She referred to the Complainant's contract of employment which provides:
- "Your initial assignment will be to Crann�g Nua - High Support Unit. The Health Service Executive Dublin North East reserves the right to assign you to any other location asthe service exigencies require. "
Furthermore, Ms West stated that the transfer in location was intended to be for a short while only, however, due to circumstances beyond its control, the redevelopment took significantly longer than had been anticipated. She said that the new Special Care Unit at Crann�g Nua opened in November 2017.
The Complainant suffered a second further assault at work on 5thDecember 2015 and was absent until 8thJanuary 2016.
Ms West said that it was agreed with the Union that all social care workers, who were working in Ballydowd and Crann�g Nua, and who did not have a social care qualification would to be given an opportunity to complete a BA in Social Care in order to obtain the professional qualification. The Respondent agreed to pay the fees and social care workers who took up the option remained on full salary and were treated as if they were working full time in Ballydowd. The Complainant commenced the BA course in July 2014. However, after a short period, she withdrew for personal reasons.
Ms West said that the Complainant attended an Occupational Health Assessment on 24th September 2014. The Occupational Health Physician noted in her report that, although the Complainant was absent from work due to a medical condition, there were a number of personal stressors, particularly in relation to the Complainant's young child who had been born prematurely and had on-going medical conditions, she noted"it is sensible that she has deferred the social studies degree for now, although this does significantly limit her options in terms of her redeployment'. The Occupational Health Physician reported that the Complainant had found the last number of months stressful, stating that she believed that this was due to a combination of some work-related issues, including the transition to Ballydowd, but was also due to the challenges of managing work life balance with a young child, and, particularly where that young child had medical needs. Although the Occupational Health Physician stated that she could not justify it medically, she stated that she would strongly support a reduction of the Complainant's hours to 20 hours per week for welfare reasons. This reduction in hours was facilitated immediately by the Respondent.
Prior to returning to work in June 2015, the Complainant raised the possibility of working eight hour shifts; not working nights initially and sought a period of shadowing when she returned to work. When she sought a self-referral to Occupational Health, this was not possible, therefore the Respondent arranged the referral, which took place on 3rd July 2015. In her report, the Occupational Health Physician referred to the Complainant having a number of personal issues, noting that these were resolving and that she was accessing supports in this regard."I think that it would be reasonable to support Ms Flynn for the next few months by precluding her from working night duties until she has returned to work successfully and managed her symptoms accordingly. The expectation is that things will settle for her and that she will be able to return to her usual working conditions".
Ms West said that the Respondent confirmed that the Complainant would be supported in not being required to work nights up until 18th September 2015, this facility was further extended to February 2016. Ms West said that the only time the Complainant worked nights in a four-year period was in February 2016 when she worked a block of seven nights, followed by seven days off with her agreement. She said that had the Complainant raised issues regarding support or additional training with the Respondent, it would have taken steps to address these.
The Complainant returned to work on 8th January 2016. She had a number of absences in February for different reasons, including force majeure leave and annual leave and was on leave from 2nd to 30th March 2016 inclusive. On 1st April 2016, the Complainant met with Ms Jacqui McCann, Unit Manager, and informed her of her intention to resign. At this meeting, the Complainant stated that Ballydowd was"not for her':that she had tried and given it a go and that she wanted to try something different like working in a cr�che. This was followed up by an email dated 4th April 2016. In this email, the Complainant referred to an assault which had occurred involving a new client and other staff members the previous day. The Complainant requested that she be allowed to work out her notice in the administration building. Although this request could not be accommodated, the Complainant was allowed to use up time in lieu and annual leave so that she only had to work a couple of days before finishing up on 22nd April 2016. In the Resignation Form HR106, the Complainant was required to specify the reason for leaving employment. The Respondent notes that the Complainant ticked "Personal Reasons".
Ms West submitted that there was no significant breach going to the root of the employment contract in this case. She said that the nature of the work in a High Support Unit or a Special Care Unit is challenging as it involves working directly with teenagers who have emotional and behavioural difficulties, both on a group and one-to-one basis. Ms West said that to minimise the exposure of its employees to risk the Respondent provides support and training to employees, conducts risk assessments in conjunction with employees and union representatives and provides training and refresher training in techniques such as Therapeutic Crisis Intervention.
Ms West said that the Respondent fully recognises that the Complainant had sought to transfer out of Crann�g Nua in 2011 and later out of Ballydowd., however, she chose not to avail of the transfer opportunities that were available to her in 2015. Ms West said that the Respondent was limited in its ability to facilitate a transfer for the Complainant by the fact that she did not have a social work degree; her unavailability to do sleepovers because of her family situation and thirdly, the establishment of the Child and Family Agency and the transfer to it of some of the social care services previously provided by the HSE reduced dramatically the number of social care positions available for transfer.
Ms West said that a new pilot transfer scheme had been introduced in December 2015 to facilitate transfers of employees within the Child and Family Agency. The Complainant did not, however, put in a formal transfer request to be moved out of Ballydowd under this scheme.
Finally, Ms West commented on the fact that the Complainant made no attempt to invoke the grievance procedure and said that IMPACT could have assisted the Complainant in bringing such matters to the Respondent's attention. She made the point that in circumstances where the Complainant is claiming constructive dismissal, the Respondent was somewhat surprised that she is seeking “Re-instatement, Reengagement if not then at least Compensation".
Summary of the Witness Testimony
- The Complainant
The Complainant told the Court that she had had a good working relationship with the Respondent up to the transfer from Carnnog Nua to Ballydowd. She said that she found the working environment difficult in Ballydowd and sought a transfer, which was not forthcoming. She was unhappy with the withdrawal of benefits in November 2015 which had been paid on the transfer to Ballydowd in June 2015.
She said that on 1stApril 2016 she had a meeting with Ms McCann, her line manager, and informed her that she was resigning. She said that she told her she had done her best, that she had really tried but that she was finding the work physically demanding. She said that she wished to work with young children until she got her head together. She said that she mentioned she was fearful of a new client who had arrived in the Unit as he was particularly aggressive and stated that this had a major impact on her decision to leave. She also mentioned to Ms McCann that there was an expectation that the move to Ballydowd was a temporary move and yet there was no indication at that time when the transfer back to Portrane would take place. The Complainant said that when there was no sign of a transfer to another location she made the decision to leave. She said that she had made her decision at that stage to leave, she confirmed her decision in writing by email to Ms McCann on 4thApril 2016.
The Complainant said that no one from the Respondent came to speak to her about her resignation. When she completed the “Resignation Form HR106” she said that she ticked box “Personal Reasons” as to why she had decided to resign and explained that she did this as she did not wish to have any bad feelings over her resignation.
She said that the main reason for resigning was the lack of a transfer to another location. When questioned as to why she did not raise this as a grievance with the Respondent she said that she did so through her Union, IMPACT, of which she was a member during her employment with the Respondent. When questioned why she did not respond to the written invitation given to her by Mr Mark Smith dated 27th April 2015 to attend a meeting on 1st May 2015 to discuss temporary residential transfers, she replied that she had been advised by her Union not to attend as the transfer positions were paid at a lower salary.
With regard to her dissatisfaction over the withdrawal of benefits/expenses in November 2015, she said that she did not raise a grievance with the Respondent as the Union were dealing with the issue collectively.
In answer to questions from the Court, the Complainant accepted that she did not raise any grievance with the Respondent. She accepted that she did tell Ms McCann that she was resigning, that she never mentioned to her that she felt unsupported by the Respondent and never mentioned that she had decided to resign due to the conduct of the Respondent. The witness said that when she returned from her annual leave on 31stMarch 2016, her Union informed her that temporary transfers were not going to happen and that this had a major impact on her reasons to resign, which she did the following day. She accepted that she had not informed or sought support from her Union on the issue of her resignation.
- Mr Mark Smith, Director
Mr Mark Smith gave evidence on behalf of the Respondent. He said that at the material time he was Acting Director in Crann�g Nua and in Ballydowd. He said that due to national requirements there was a need to transform Crann�g Nua into a Special Care Service, to make it more robust. He said that originally it was envisioned that the project would take about 9 months, however due to planning permission difficulties and discovery of pyrite the project took much longer than anticipated. Staff began to transfer back in September 2017 and it finally reopened in November 2017. He explained that before the transfer to Ballydowd took effect there were extensive discussions between management and IMPACT on various aspects of the transfer. It was agreed to pay benefits and expenses to employees who transferred. This arrangement came to an end when IMPACT agreed to its cessation in November 2015, as outlined to the Complainant and all other employees in a letter dated 8thDecember 2015.
The witness was asked about the invitation he extended to the Complainant to attend the meeting on 1stMay 2015. He said that this came about as a result of an agreement with IMPACT to discuss the possibility of transferring employees on a temporary basis from Ballydowd to alternative locations within Tusla. He said that two employees availed of a transfer. They had been selected on the basis of their seniority and qualifications and were placed in positions where there were funded vacancies available.
The witness said that he met with the Complainant in January 2015 when she requested a transfer. He said that the letter dated 27th April 2015 was an invitation to meet to discuss Temporary Residential Transfers, however, the Complainant did not attend on the advice of her Union.
- Ms Jacqui McCann, Unit Manager
Ms Jacqui McCann gave evidence on behalf of the Respondent, she said that at the material time she was Acting Unit Manager of Ballydowd and was the Complainant’s Line Manager. The witness recounted the meeting which took place on 1stApril 2016 between her and the Complainant. She said that it was an extremely friendly conversation, there was no negativity. She said that the Complainant told her she was resigning, that it just was not for her, she had given her best shot. The witness said that she felt that the Respondent had already extended a number of facilities to the Complainant and asked the Complainant if there was anything more that the Respondent could do, and gave examples, shifts, flexibility, supports. The Complainant did not look for any further facilities. She said that the Complainant talked about working in a cr�che.
The witness asked the Complainant to put her resignation in writing and to complete a Resignation Form. the witness described this encounter with the Complainant as “friendly, nothing untoward”.
The Complainant in her written notification of her resignation sought to work out her notice in the administration building or in other areas but not on the Units. The witness said that she accommodated her with annual leave instead.
The witness said that she was aware that a new client had arrived to the Centre at the end of March 2016 and that he had behaved in an aggressive manner towards other members of staff, however the Complainant was not involved. When asked if the Complainant had mentioned this new client in the meeting on 1stApril 2016, the witness said that no she had not.
The Law
Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal as follows: -
- “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”
Section 6(1) of the Act states: -
- 6.(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Discussion
As the Complainant is alleging constructive dismissal, the fact of dismissal is in dispute and the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such as to justify her terminating her employment.
Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his position, often referred to as the “contract test”. This requires that an employer be“guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance”as held inWestern Excavating (ECC) Ltd v Sharp[1978] IRL 332.
Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so she is justified in leaving.
The question for the Court to decide is whether, because of the conduct of the Respondent, the Complainant was or would have been entitled, or it was or would have been reasonable for her, to terminate the contract of employment.
Although it would appear the Complainant is relying on the contract test, many other issues were put in contention. Therefore, the Court will consider the various grounds relied upon in making make its findings.
Court’s Findings
The Court has considered each of the authorities relied upon by Mr Bolger and found that they do not support the claim advanced on the Complainant’s behalf. Furthermore, it is not clear to the Court the fundamental term in the Complainant’s contract of employment which it is claimed had been breached.
In her evidence to the Court the Complainant said that the dominant reasons for her resignation were the lack of transfer opportunities and the arrival of a new client who had demonstrated aggressive tendencies to other staff.
The Court notes that the Complainant had endured two assaults at work, one in 2011 and the second in 2015, and that for that reason coupled with a variety of other reasons she had significant amounts of absences from her work in the period from June 2011 until her resignation in April 2016.
During this extended period, the Respondent facilitated her each time she sought adjustments in her working hours, removal from night duty, flexibility regarding her start and finish times and referral for consultation with the Occupational Health Physician.
- Transfer Request
One of the Complainant’s main concerns following the relocation to Ballydowd was her quest to be transferred to an alternative work location. The Court notes that the Respondent was limited in its ability to facilitate a transfer for the Complainant as she did not have a Social Work Degree; her unavailability to do sleepovers due to her family responsibilities and the lack ofsocial care positions available for transfer - only two employees transferred in the period from 1st January 2015 to 13th March 2016. To assist the Complainant’s opportunity to avail of a transfer, the Respondent offered her (and other Social Care workers) who were working in Ballydowd and Crann�g Nua, an opportunity to complete a BA in Social Care. The Respondent agreed to discharge all fees and those who took up the option remained on full salary and treated as if they were working full time. While the Complainant commenced the BA course in July 2014, after a short period she withdrew from the course.
The Court notes that efforts were made following the assault on her in 2011 to determine if a suitable location could be found to transfer the Complainant. At the time the only position available was in Grove Lodge, however, the Respondent explained to her that that position involved similar challenges to the position she held in the High Support Unit in Crann�g Nua and due to her lack of appropriate qualifications no other position could be found for her.
The Court considered it highly significant that the Complainant filled out a Form on 9thJanuary 2015 indicating her interest in being considered for an alternative interim work location - other than Ballydowd, yet she failed to avail of the opportunity to attend a meeting on 1stMay 2015 to discuss Temporary Residential Transfer for those who were transferred to Ballydowd. The invitation letter sent to her from Mr Smith referred to the Respondent’s ongoing discussions with IMPACT and that it had been requested to contact staff to discuss the possibility of such temporary transfers. It is clear from the Form that she completed that this initiative was taken in conjunction with IMPACT, yet in her evidence the Complainant stated that IMPACT advised her not to attend the meeting.
In a letter from Mr Smith dated 8thDecember 2015, the Complainant was advised as follows: -
- “Permanent transfers from special care will continue to be offered based on permanent vacancies becoming available and on recognisable service that staff members have worked.”
- Withdrawal of Benefits/Expenses
Mr Bolger submitted to the Court that withdrawal of benefits/expenses was a unilateral change to the Complainant’s conditions of employment and consequently amounts to a repudiatory breach of the contract of employment by the Respondent. The Court notes that there were discussions and negotiations on-going for a long period of time between the Respondent and IMPACT surrounding the closure of Crann�g Nua and the temporary assignment of employees to Ballydowd for the duration of the redevelopment of Crann�g Nua and its reopening as a Special Care Unit.This resulted in an agreement that allowed staff to claim for mileage, time in lieu for travel to Ballydowd and tolls incurred. Due to possible Revenue implications for staff, it was agreed with IMPACT in November 2015 to discontinue these benefits/expenses. This was communicated to the Complainant in the letter from Mr Smith dated 8thDecember 2015.
The Court is satisfied that the introduction and withdrawal of these benefits/expenses was agreed on a collective basis with IMPACT. It was clear that such benefits/expenses could not be sustained on the long term and one of the reasons for their withdrawal was due to possible Revenue implications for the Complainant (and others). Therefore, the Court cannot accept Mr Bolger’s contentions in that regard. In any event the Court cannot accept that such amendments to her contract of employment could amount to a repudiator breach of contract by the Respondent.
- Support for the Complainant following Assaults at Work
The Respondent told the Court that the environment of a Special Care Unit is a challenging environment in which to work. The Court has no reason to doubt this assertion.
On the evidence given and the supporting documentation furnished to the Court, the Court is satisfied that the Respondent supported the Complainant in various ways following the assaults at work. Each time she sought to be accommodated in altering her terms and conditions of employment, the Respondent was willing to do so. The Court is satisfied that such support was provided to her in a prompt and willing fashion. The Court accepts that contrary to what is suggested by the Complainant the Respondent acted reasonably towards her and made every effort to address her concerns and needs.
- No Grievance Raised
In constructive dismissal cases, where the Complainant claims that the employer acted unreasonably the Court must examine the conduct of the 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 LimitedUDA474/1981.
The Complainant told the Court that she did not raise a grievance at any time with the Respondent before making the decision to resign. She said that she was aware of the Respondent’s grievance procedure and had a copy of the Staff Handbook containing the procedure.
The Complainant contended that her email resignation letter of 4thApril 2016 was in fact the raising of a grievance. It is clear from the evidence given that the meeting between the Complainant and Ms McCann was entirely to inform the Respondent of the decision she had already made to resign her employment as the job was not for her and she wished to change career and was interested in looking after children instead. The Court notes that immediately following her resignation the Complainant proceeded to undertake a study course in childcare. Ms McCann described that meeting as friendly and one where the Complainant discussed how and where she wished to work out her notice, it was followed in a couple of days with a written resignation which sought the Respondent’s support for that facility during her notice period. While it also made reference to an incident with the new client that had occurred the previous day, the Court notes that the Complainant was not involved in that incident and it occurred days after she informed Ms McCann of her resignation.
The Court is of the view that an employer could not be expected to deal with an employee’s grievances in circumstances where an employee has failed to notify it of issues through the grievance procedure or otherwise. The Complainant in this case could have raised a grievance herself or through her Union. However, she failed to avail herself of any opportunity to put the Respondent on notice of the reasons she maintained lead to her resignation.
Based on the flexibility and support provided to the Complainant the Court accepts the Respondent’s contention that had the Complainant raised issues regarding support or additional training with it, it would have taken steps to address these.
In such circumstances where no grievances had been made, where the Complainant’s decision to resign was conveyed in a friendly manner and where she indicated that she had personal reasons for leaving, the Court is satisfied that it was reasonable for the Respondent to believe that this decision was made by the Complainant’s own free will.
Conclusions of the Court
Having considered the Complainant’s evidence that the dominant reason why she resigned was the Respondent’s failure to transfer her to another location, in all the circumstances of this case, the Court cannot accept that this contention as a fundamental breach going to the root of her contract. Nor could any of the other matters referred to by the Complainant in her evidence, either individually or cumulatively amount to such a fundamental breach of contract.
Furthermore, having examined the evidence proffered by the Complainant, the Court fails to see how any assertions meet the standard of reasonableness required to substantiate a claim of constructive dismissal. In any event, there is a concomitant obligation on a person seeking to rely on that test to act reasonably. From the evidence tendered by the Complainant, the Court has found no evidence to indicate that she made reasonable efforts to address her grievances before resigning.
Determination
Therefore, the Court takes the view that the Complainant has not satisfied either element of the tests outlined above. Accordingly, the Court determines that the Complainant was not constructively dismissed from her employment. The decision of the Adjudication Officer is upheld and the appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
9th February, 2018Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.