Complainant

Respondent

Anonymised Parties

A Social Care Worker

A Care Provider

Representatives

In Person

Ms. Mary Fay B.L. on the instructions of Pembroke Solicitors

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00015611-001

06/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00015613-001

06/11/2017

The complainant was employed by the respondent as a Social Care Worker from 16 January, 2017 until 19 October, 2017. The complainant claims that she was forced to resign from her position as a result of bullying and harassment in the workplace following the initiation of disciplinary action against her by the respondent which resulted in her being transferred to another work location. The respondent denies that the complainant was subjected to bullying and/or harassment in the workplace. The respondent contends that the complainant resigned of her own volition following the issuing of a written warning and being advised of her relocation to another centre after a finding of bad practice against a service user in the residential centre where she had been initially assigned.

The complainant was employed by the respondent as a Social Care Worker and was working on an 80 hour per month contract. She was assigned by the respondent to work at a residential which was located within a 40-minute commute from her home.

The complainant claims that she was forced to resign from her position as a result of bullying and harassment in the workplace following the initiation of disciplinary action against her by the respondent. The incident which gave rise to these disciplinary proceedings was alleged to have occurred on 29 July, 2017 following the complainant’s return to the residential care centre after a trip to Achill Island with a service user.

The complainant was accused by two other staff members of psychological abuse to a service user (hereinafter referred to as service user “X”) on this date. The allegation was made after these two staff members had been reported to management about a failure to complete some of their tasks on this date.

The complainant contends that she can only assume these two staff members believed that she had made this complaint and as a result they made a fictitious complaint to management that she had psychologically abused service user X. The complainant denies that she committed the alleged act of psychological abuse in relation to service user X on this occasion. She submitted that the accusation of psychological abuse by these two staff members was a very serious matter that could put an end to a career which she had worked so hard to achieve over the past five years.

The complainant submitted that following an investigation of this alleged incident by the respondent the complaint of “psychological abuse” was reduced to that of “bad practice”. The complainant disputes the findings of the investigation and does not accept that she acted in an unprofessional manner at any point when dealing with service user X on the date in question. She contends that the investigation which was carried out by the respondent in relation this incident was unfair and incomplete. The complainant claims that the investigation was an unduly lengthy process, her hours of work were reduced and she was certified unfit for work due to depression and anxiety during the process.

The complainant submitted that the investigation process was procedurally flawed, and for example, she wasn’t provided with relevant documentation at the appropriate juncture during the investigation, false statements were made against her by the two aforementioned staff members and she wasn’t afforded adequate time to respond to written communications.

The complainant believes that the respondent did not act in her interests in any way during this investigation with the false allegation of psychological abuse being dropped and instead she was issued with a written warning based on bad practice because the respondent needed “a result”. The complainant contends that the respondent preferred the easier option of giving her a written warning for bad practice.

The complainant was informed by the respondent following the investigation that she was being transferred to another residential centre for the purpose of safeguarding both her and service user X. The complainant contends that the alternative work location was 1.5 hours drive from her home and that such a commute was not possible or practical due to the long distance and poor road conditions between both locations. In addition, the complainant has a medical condition called fibromyalgia which causes fatigue and pain to her joints and as a result the long commute would adversely affect her health.

The complainant informed the respondent that it would not be possible for her to transfer to the alternative location but was informed she had no choice. The complainant claims that, in the circumstances, she had no alternative but to resign from her position which was communicated by e-mail on 19 October, 2017.

The complainant contends that the reason she had to resign her position was not due to having received a written warning but rather was due to the fact that the proposed transfer to an alternative location would have made continuing in employment with the respondent both uneconomical and dangerous.

The complainant had made a formal complaint to the respondent on 31 August, 2017 in relation to the bullying and harassment and the other workplace issues which contributed to her decision to resign. However, she contends that the respondent failed to deal with this complaint in a timely manner and that the investigation in relation to this matter only concluded in March, 2018 which was a number of months after her resignation.

The complainant commenced employment with the respondent on 16 January, 2017 as an Assistant Support Worker with a starting salary of €12.11 per hour. On completion by the complainant of her third year Level 7 qualification in Social Studies she was employed as a Social Care Worker on €13.75 per hour with effect from July, 2015. At all material times the complainant was employed on an 80 hour per month contract. The complainant’s contract of employment included a clause which provided that was required to have flexibility to travel to any of the respondent’s residential care centres and that the company reserved the right to transfer her at any stage to alternative facilities/locations.

The complainant was initially assigned to work at the respondent’s residential facility in a regional location. This facility is a designated centre providing 24-hour care to children and adult service users, both male and female, with autism and intellectual disabilities within the 16 to 23 age range. The number of service users that can be accommodated at any one time is a maximum of four.

On 3 August, 2017, in the course of a supervision meeting with their Team Leader and Person in Charge, a member of staff “ST” recounted an incident that occurred on 29 July, 2017 between a service user and the complainant where ST alleged she observed and overheard the complainant speaking to service user X in a loud mimicking manner. The incident was alleged to have occurred in the presence of service user X’s parents. Formal written statements were submitted by two members of staff who said they observed the incident.

As a designated centre and in accordance with HSE and national policy the respondent operates the Safeguarding Vulnerable Persons at Risk of Abuse Policy & Procedures in cases of possible abuse. A Preliminary Screening was carried out and an interim safeguarding plan was put in place. The interim plan involved the complainant continuing to work at the centre on a 2:1 basis with increased levels of supervision. Service user X’s parents were notified by the Person In Charge on 3 August, 2017 about the allegation and HIQA were also notified. It was noted that service user X’s father was not happy with the way the complainant spoke to his son when asking him what treat he would like and felt the approach used seemed to agitate him.

The complainant was advised of the nature of the allegation and the interim safeguarding measures by the Regional Manager on 9 August, 2017. The complainant also provided with a replying statement, by e-mail, to the allegation on 9 August, 2017. The complainant was invited to attend an investigation meeting on 14 August, 2017. She was provided with copies of the statements made by her two colleagues as well as the Company Disciplinary Policy, Vulnerable Persons Policy and the terms of reference of the investigation by letter dated 10 August, 2017. The letter advised the complainant of her right to be accompanied by a fellow employee or a trade union official.

The investigation was conducted by an independent external investigator who concluded that service user X was spoken to in a loud manner by the complainant on 29 July, 2017 and that there was a case to answer about bad practice. The investigation report was concluded on 21 August, 2017.

Separately, the Person In Charge contacted service user X’s parents on 21 August, 2017 to enquire how the family visit on Saturday had gone. Service user X’s mother said it went well but that the complainant had approached her and her husband outside the centre and offered her apologies regarding service user X. She replied that the complainant should be apologising to service user X. The Person In Charge noted that service user X’s mother seemed slightly annoyed with the complainant.

On 29 August, 2017, the complainant wrote to the respondent advising that she did not accept the findings of the investigation report and set out her reasons therein. She also queried why service user X’s parents had not been interviewed as part of the investigation. The complainant submitted a formal grievance to the respondent on 31 August, 2017. She was advised on 5 September, 2017 that her grievance would not be processed until the investigation and process into the psychological abuse was concluded as her grievance was related to the same matter.

The completed investigation report was forwarded to the respondent’s HR Manager. The complainant was invited to attend a disciplinary hearing to be conducted by the respondent’s HR Manager and Director of Operations on 7 September, 2017. This meeting actually took place on 14 September, 2017.

In light of the complainant’s insistence that service user X’s parents ought to have been interviewed as witnesses to the alleged incident and the apparent conflict between the complainant’s versions of her interactions with them and that in the family contact forms, the complainant was advised by the HR Manager on 9 October, 2017 that she proposed seeking clarification from service user X’s parents. Notwithstanding having criticised the respondent’s failure to do so and citing her belief that any such contact would be exculpatory of her; the complainant now felt that any such contact would be “inappropriate”. The HR Manager did seek further clarification as had been agitated by the complainant by contacting the service user’s parents on the 10 October, 2017. Both parents confirmed that the complainant had raised her voice to their son on 29 July, 2017 and that when she proffered an apology they had suggested she apologise to service user X.

The complainant was advised of the outcome, a first written warning which would stay on file for 12 months, at a meeting on 19 October, 2017 which was also followed up in writing. On being advised that this was the outcome and that the warning would remain on her file for 12 months the complainant replied that: “she would not be with the Company in 12 months and does not feel she can stay with the Company”. It was submitted that the finding of bad practice appears to have been the motivation, or a significant motivation, for the complainant’s resignation as this is what triggered the first mention of same. This also accords with the complainant’s opposition to any sanction as noted by her reaction as the disciplinary meetings wherein she was adamant that she did nothing wrong.

The complainant was also advised at this meeting that she was going to be relocated to another centre, the next closest to her home, to safeguard both the complainant and the service users. The complainant immediately advised that she would not work at the next nearest centre, as this alternative location was over an hour’s drive from her home. The complainant advised that she would be handing in her notice and “taking this further”. The complainant was advised of her right to appeal, but she did not submit an appeal and in fact submitted her resignation within a few hours of the meeting concluding on 19 October, 2017.

The respondent submitted that the complainant was assured that she would be accommodated with sleepover shifts and 12 hour shifts, if she wished, having regard to the commuting distance to the new work location and that should a closer location arise she would be accommodated. However, the complainant would not revisit her decision to resign, nor did she appeal, transfer under protest or lodge a grievance regarding the exercise of her mobility.

The respondent denies that the complainant was constructively dismissed from her position and contends that neither the “contract” nor the “reasonableness” test have been discharged or met in the instant case. Further, it is submitted that the complainant has not provided any objective evidence justifying her failure to utilise and exhaust the internal policies available to her prior to terminating her employment.

The respondent also denies that the complainant was subjected to bullying or harassment in the workplace during her period of employment. The respondent submitted that the formal grievance raised by the complainant on 31 August, 2017 in relation to other workplace related issues was fully investigated notwithstanding the fact the complainant had already resigned from her employment. The complainant was provided with a copy of the investigation report but had refused to engage any further with the respondent in relation to this matter.

The respondent relied upon the following cases in support of its position, namely: Harkin -v- Guinness Storehouse Limited[1], Murray -v- Rockabill Shellfish Limited[2], Patricia Berry-Relph -v- HSE[3], Conway -v- Ulster Bank[4] and Mara Rybak -v- Matthew Hannigan t/a Hannigan Facility Services Building[5].

Dispute Ref. No. CA-00015611-001

I have carefully considered the extensive written and oral submissions made by the parties in relation to this dispute.

This dispute was referred to the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969 and, in essence, concerns a claim of constructive dismissal. The Complainant commenced employment with the Respondent on 16 January, 2017 and resigned her position as a Social Care Worker on 19 October, 2017 after allegedly being subjected to bullying and harassment in workplace following the initiation of disciplinary action against her by the respondent.

I am satisfied that this case may be informed by the Unfair Dismissals Acts in respect of constructive dismissal cases.

The term “constructivedismissal” is not specifically mentioned in the Unfair Dismissals Acts. However, it is a term commonly understood to refer to that part of the definition in Section 1 of the 1977 Act. The burden of proof in such cases, which is a high one, rests with the complainant. The complainant must demonstrate that she was justified in his decision and that it was reasonable for her to resign her position. The complainant must also demonstrate that she had no option but to resign.

The alleged unreasonable behaviour contended by the complainant in the instant case which she claims resulted in her position becoming untenable and ultimately led to her resignation can be summarised as follows:

(1)    The initiation of disciplinary proceedings by the respondent against the complainant which resulted in her being issued with a written warning and being advised of her relocation to another centre following a finding of bad practice, and

(2)    Other workplace issues relating to the complainant’s terms and conditions of employment (such as constant changes to rosters, relief staff allocated more hours, being rostered while on annual leave, failure to be allocated admin work etc.) which resulted in her submitting a formal grievance to the respondent.

It is clear that a report was made to the respondent relating to an incident on 29 July, 2017 in which an allegation of psychological abuse was made against the complainant by two staff members. I am satisfied that the respondent was obliged and fully entitled to investigate this matter given the serious nature of the allegation. I find that that the procedures adopted by the respondent in investigating this complaint were fair and allowed the complainant an adequate opportunity to mount a full defence.The investigation concluded that the complainant had a case to answer as regards bad practice (rather than psychological abuse) and the respondent initiated its internal disciplinary procedures in relation to the matter.

Following the conclusion of this disciplinary process the respondent decided that the complainant’s actions in relation to this incident amounted to bad practice and she was given a written warning which would stay on file for 12 months. The complainant was also advised that she would be relocated to another of the respondent’s centre, the next closest to her home, to safeguard both the complainant and service users. I find that this disciplinary procedure was carried out in a fair manner in accordance with the respondent’s internal disciplinary procedures and that the sanction imposed by the respondent on the complainant was reasonable and proportionate in the circumstances.

The complainant has claimed that her relocation to another centre was not practical or feasible and made her position untenable. However, I cannot accept her contention on this issue and I am satisfied that the measure was reasonable and proportionate in the circumstances and in keeping with the terms of her contract of employment which provided that the company reserved the right to move her to alternative work locations.

The complainant did not appeal the outcome of the disciplinary proceedings despite being afforded the opportunity to do so and informed the respondent of her decision to resign. I find that the complainant took the decision to resign from her employment before she had fully exhausted or utilised all remedies available through the Respondent’s internal grievance and disciplinary procedures. Furthermore, I cannot accept the complainant’s contention that the manner in which this disciplinary process was conducted or the outcome thereof amounted to bullying or harassment of her by the respondent.

It is also clear that the complainant’s resignation occurred prior to the outcome of the investigation in relation to the grievance which she had raised on 31 August, 2017 relating to a number of workplace related issues concerning her terms and conditions of employment. This grievance was submitted by the complainant following the conclusion of the investigation into the alleged incident psychological abuse and prior to the completion of the disciplinary proceedings in relation to this matter. I am satisfied that there was an obligation on the complainant to fully exhaust the internal procedures to try and resolve these issues before taking the step to resign from her employment. However, I note that notwithstanding the complainant’s resignation, the respondent subsequently proceeded to conduct a thorough investigation into her grievance and she has been provided with a copy of the outcome of this process.

Having regard to the foregoing, I find that the complainant has not established that the conduct of the respondent was such that she had no option but to resign her position. Accordingly, I find that the complainant was not constructively dismissed from her employment.

Dispute Ref. No. CA-00015611-001

I recommend the complainant accepts that she was not constructively dismissed from her employment.Accordingly, the complainant’s claim is not well founded and must fail.

Industrial Relations Act 1969 – Section 13 – Trade dispute – Disciplinary proceedings - Constructive dismissal – resignation