Complainant

Respondent

Anonymised Parties

A Dental Nurse

A Dental Practice

Representatives

 Solicitors

Peninsula Group Limited

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-00019633-001

07/06/2018

The complainant was employed by the respondent as a Dental Nurse from 16th May 2014 until her resignation on 20th April 2018. The complaint relates to alleged Constructive Unfair Dismissal.

The complainant stated that she had no option but to resign from her employment due to the actions of her employer. The complainant stated that she began to experience difficulties in the workplace in or around June 2016. The complainant contends that she was regularly shouted out and verbally abused by one of the Directors of the Respondent and was the spoken to in a crude manner by another Director who also slapped her on the bottom as well as making suggestive remarks in relation to men of his nationality. The complainant stated that she verbally raised three grievances in an informal manner to the respondent’s HR consultant. The complainant stated that one meeting was arranged to discuss her issues and a Director who was the subject of the grievances was present at the meeting. The complainant stated that she found it difficult to articulate her grievances in those circumstances. The complainant stated that after the grievance meeting, there was minimal interaction with the directors and she became increasingly isolated in the workplace. The complainant stated that her health suffered as a result and she started to suffer from Anxiety and Insomnia. The complainant stated that she eventually resigned from her employment by email dated 20th April 2018 and received no response from the respondent in relation to her resignation or any of the matters raised in her email. The complainant is seeking compensation in relation to her complaint.

The respondent refutes the complaint in its entirely. The respondent stated that the complainant was not constructively dismissed. The respondent’s position is that the complainant resigned following numerous instances of misconduct in respect of time keeping, stock management, unauthorised discounts and forgery of a Director’s signature on a Department of Social Protection Application form as well as other misbehaviour that had been the subject of an internal investigation. The respondent stated that the complainant resigned in the knowledge that her position with the respondent was in jeopardy. The respondent stated that after her resignation, the complainant sought written clarification from the respondent that her job had ceased due to the lack of available work.

In relation to the complainant’s grievances, the respondent stated that the complainant was in receipt of the Employee Handbook which outlined the grievance procedure in place. The respondent stated that the complainant did not formally invoke the grievance procedure in relation to the issues which she now claims to have been the reasons for her resignation. The respondent cited the cases of Tierney v DER Ireland Ltd UD866/1999 and Travers V MBNA Ireland Ltd UD720/2006 in support of its position that the complainant resigned without substantially utilising the grievance procedures available to her and therefore cannot succeed in a complaint of Constructive Unfair Dismissal.

The respondent also cited the following cases in support of its position; Coffey v Connect Family Resource Centre Ltd UD/1126/2014, A General Operative v A Religious Society ADJ/00002814, Western Excavating (ECC) Ltd v Sharpe [1978]ICR:221, Allen v Independent Newspapers (Ireland) Ltd [2002]ELR 84, Donegan v Co Limerick VEC UD/282/2011 and Ruffley v Board of Management of St Anne’s School [2017] IESC 33.

I note the significant conflict between the parties to this complaint. The complainant asserts that she was left with no alternative but to resign on the basis of the respondents conduct and the respondent submits that the complainant resigned, knowing that she may have been dismissed for several instances of misbehaviour which had been investigated.

The Applicable Law

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 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.”

 The burden of proof rests with the Complainant in this case.

 There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.”

 In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

 Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

“whether the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

 The requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:

“the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.”

In relation to availing of a grievance procedure, the Labour Court held as follows in Mr O v An Employer (no. 2) [2005] 16 E.L.R. 132:

“The court accepts that 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. However, there is authority for the proposition that this is not a fixed or universally applicable rule and there can be situations in which a failure to give prior formal notice of grievance will not be fatal.” See Allen v Independent Newspapers [2002] E.L.R. 84; May v Moog Ltd [2002] E.L.R. 261 and Monaghan v Sherry Bros [2003] E.L.R. 293. See also the determination of this court in New Era Packaging v A Worker [2001] E.L.R. 122)”

While I accept that there may have been issues of concern with the complainant’s performance and behaviour, the complainant gave evidence at the adjudication hearing of how she felt she had been treated by the directors of the respondent and the isolation she felt at work. The complainant stated in evidence that she had raised the grievances informally and when a meeting was arranged, she felt unable to articulate her complaints to the HR consultant as the subject of a number of the complaints was present at the meeting.

I also note the evidence of a former employee who confirmed that there were issues of concern in the workplace. The Practice Manager gave evidence that she herself had raised a grievance in writing as advised by the HR consultant and all matters had been resolved. Counsel for the complainant stated that the complainant had not been advised by the HR consultant to submit her complaints in writing.

The complainant submitted a lengthy email to the respondent confirming her resignation. Having reviewed the email in question, there were a number of statements from the complainant which indicated a willingness to resolve her issues and remain in the employment of the respondent. In my view this was an opportunity for the respondent to engage with the complainant in an attempt to maintain the working relationship. There was no response to the complainant’s email.

At the adjudication hearing, both Directors were present and chose not to offer any evidence in relation to the complaint or comment in any way in relation to the complainant’s evidence. In the absence of any rebuttal evidence or comment from the respondent directors, I am satisfied that the complainant’s evidence was honest and credible.

In all of the circumstances of the complaint, I am satisfied that the complainant was justified, given the difficulties that she was experiencing in the workplace, in holding the view that she had no other option but to resign from her employment.

Mitigation of Loss

In calculating the appropriate compensation due to the complainant, I am mindful of the EAT Decision of Coad v Eurobase (UD1138/2013) in relation to the complainant’s efforts to mitigate her loss. In that case the EAT found that the complainant’s efforts had not met the standard as set out in the case of Sheehan v Continental Administration Co. Ltd (UD858/1999) which stated:

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work…. the time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”

In the instant case, the complainant stated at the adjudication hearing that she had submitted 3 job applications to prospective employers in the eight months since resigning from her position with the respondent. In those circumstances, I am not satisfied that the complainant met the required standard in attempting to mitigate her loss. This is reflected in the level of compensation awarded to the complainant.

Having considered the submissions of both parties and all of the evidence adduced at the adjudication hearing, I find that the complaint of Constructive Unfair Dismissal is well founded. The respondent is directed to pay the complainant €5,000 in compensation.

Constructive Unfair Dismissal