Complainant

Respondent

Anonymised Parties

A Social Worker

A Community Services Provider

Representatives

 IBEC

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-00015147-001

20/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015147-002

20/10/2017

The complainant was employed by the respondent from 21 September 2015 to 2nd of August 2017 as a Social Care Worker. This complaint contains an allegation of Constructive Unfair Dismissal which the complainant attributes to the actions of the respondent.    The complainant alleges that she was subjected to unfair treatment and penalisation at work following her raising serious issues regarding the health, safety and welfare of residents in the care of her employer with Management in or around 1st August 2016.

The complainant contends that the actions of the employer left her with no option but to resign from her employment.

It is submitted that the complainant had to resign her employment on 2nd of August 2017 because of the unfair treatment and penalisation she suffered at work after raising serious issues regarding the health, safety and welfare of residents in the care of her employer with Management in or around 1st August 2016.      It is submitted that she also made a protected disclosure to HIQUA on the 25th October 2016 by email at a time when the respondent was not yet registered with HIQUA.

After raising issues with Management, it is submitted that the complainant experienced an intolerable working environment and was penalised and treated less favourably than others including but not limited to her work location was changed, she suffered disadvantage, discrimination and loss of earnings (including Holiday Pay).    Furthermore because of the treatment it is submitted that the complainant was absent from work on certified sick leave because of work related stress for the period 10th March 2017 to the 31st May 2017.   The complainant submitted her complaint to the Commission on 20th of October 2017.  

The complainant advised the hearing that she was called to the office of her manager Ms. C on the morning of 2 November 2016 and was told that a complaint had been made to HIQUA by a member of staff raising concerns about the behaviour of a staff member towards a resident.  The complainant stated that Ms. C advised her that they were not yet registered with HIQUA but that a Provider Led investigation was to be initiated by the respondent following the concerns raised.   HIQUA registration was only granted in December 2016 after a number of inspections from HIQUA.  

The complainant stated that she was told that all staff including herself were to be interviewed as part of this Provider Led Investigation and as part of her interview she was asked if she had any concerns in relation to the behaviour of staff members towards residents in a named residential home. The complainant stated that she had responded by stating that she did have concerns about a colleague Ms. M’s behaviour towards residents and that she stated that she had brought these concerns up with Ms. C previously.   Ms. C then took a statement from the complainant in respect of her concerns about Ms. Ms behaviour. This statement was forwarded to Mr. P Regional HR Officer as part of the Provider Led Investigation.

The complainant told the hearing that she had raised further issues with the respondent in respect of Ms. Ms behaviour and her treatment of residents in a report of 14th of November 2016.     These matters were referred by Mr. P the Regional HR Manager by letter dated 15th of December 2016 for investigation by an independent external consultant Ms. O.

The complainant on 22nd of February 2017 wrote to Mr. P regional HR with additional complaints alleging that her work pattern had changed negatively resulting in sick leave and alleging discrimination by her line manager resulting in her feeling excluded and stressed.  

Mr. P replied to the complainant advising her that she should raise these matters at a local level firstly with her line manager Mr. D and he outlined the procedure for raising grievances, he also offered the services of the Employee Assistance Service.   A meeting was held with the complainant’s manager Mr. D on 3rd of March 2016 to address the concerns outlined in her letter of 22nd of February 2016.   The complainant’s concerns were addressed at this meeting and Mr. D responded to same.   The complainant went out on sick leave on the 11th of March 2016.

The complainant followed up on the meeting of 3rd of March by sending Mr. D her list of issues on 21 March 2017 stating that she was not happy with the responses to her grievance in the meeting of 3rd of March 2016.   The notes of the meeting were then furnished to the complainant.

The complainant stated that she was out on sick leave from 11th of March 2016 to 31st of May 2016 and during that time she was referred to the respondents Occupational Health Doctor Dr. A on 20th of April 2016.     Dr. A issued a report on 28th of April 2017 citing the complainants position and stating 4 stressors which the complainant had identified. These related to Bullying and Harassment, shift pattern, concerns for safety relating to 1 resident in the house and an ongoing investigation regarding welfare issues in the house’.   Dr. A s report had stated that the complainant was currently unfit for work but that she was fit to engage regarding her perceived stressors. Dr A recommended that early engagement of both parties would expedite her return to work’.

Following this report, the complainant attended a meeting on 11th of May 2017 with her line manager Mr. D and with HR manager Mr. P to discuss Dr. A’s report.     The complainant at this meeting outlined that she had previously raised grievances with Mr. D and she had felt they were not taken seriously.

Mr. P at the meeting referred to Dr. As report and each of the stressors identified by the complainant were discussed at the meeting.   With reference to perceived stressor of (1) Bullying and Harassment, Mr. P gave the complainant a copy of the Dignity & Respect at Work Policy and outlined channels to raise these concerns.    Mr. P also stated that he encouraged the use of the informal process first to try and achieve a speedy resolution but that the complainant could invoke the formal process if wished.

The complainant raised a concern about Mr. D telephoning her in relation to her visiting her work premises to print off documents while she was out on sick-leave.   Mr. D said that he had telephoned her as he had been made aware that she had been in the house printing off documents while on sick-leave, which is unusual and that he wanted to chat about same. He asked if she had rung any manager to say that she would be calling to house while on sick-leave which she indicated she had not. The complainant advised him that she needed to print out payslips.

In relation to perceived stressor (2) shift pattern, the complainant said that she had no time to renew when coming off nights to work days, e.g. off nights on Monday morning and then into work on Wednesday.   It was explained to the complainant that from November 2016 to April 2017 there were 2 residents going through end of life care in the house and that rosters were put in place to best support their needs. Mr. P advised the complainant that this was no longer the situation.   Mr. P gave the complainant a copy of the Grievance procedure and outlined avenues available to her if she has issues in the future with her roster and he advised that concerns, should be raised informally with her supervisor in the first instance.

Mr. P referred to perceived stressor (3) concerns for safety relating to 1 resident in the house. The complainant said that one resident had been displaying challenging behaviours. It was explained to the complainant that these behaviours were a result of the resident’s dementia and that these behaviours have since settled.

The complainant raised the issue of perceived stressor (4) concerning ‘an ongoing investigation regarding welfare issues in the house’, Mr. P acknowledged that the investigation is difficult for all involved.   He added that considering the information that was reported by the complainant that it was appropriate and necessary that an investigation be undertaken, and he hopes that will conclude soon.

Mr. P asked the complainant when she hoped to be fit to return to work.   She replied that she hoped to be back in the next month.   The complainant asked that Ms. C not ring her while she is off sick as she said that she finds it hypocritical to have Ms. C ringing asking about her health and considers it harassment.   Mr. P stated that Ms. C is her manager and part of manager’s role is to keep in touch with staff that are on sick leave and see how progressing.  He outlined the sick leave procedure and that staff have a responsibility to maintain contact with manager and keep the updated on their progress.  The complainant asked that while the investigation in progress, that on-going contact be with Mr. D.

Mr. P reiterated the Dignity & Respect at Work Policy and options available to the complainant if she has specific issue with Ms. C.     Mr. P stated that he would schedule a follow-up appointment in 8 weeks as recommended by Dr. A.

The complainant advised the hearing that her GP had declared her fit to return to work on 31st of May and stated that she had attended a further Occupational Health assessment on that date.     The complainant stated that she notified the respondent that she was ready to return to work but that the respondent advised her that she had to attend a return to work meeting before being allowed to return to work.   This meeting was scheduled for 15th of June 2017 and the complainant returned to work on 16th of June 2017.   The complainant had moved on to half pay for approx. 2 weeks on 25th of May in accordance with the respondent’s sick leave policy.   The complainant told the hearing that she was ready to return to work on the 31st of May and that it was the respondent s fault that she did not return until the 16th of June due to their delaying her return to work meeting.   The respondent told the hearing that Mr. P had been on Annual Leave at the time and that they arranged the return to work meeting as soon as possible after the complainant notified them that she was ready to return to work. The respondent stated that they could not permit the complainant to return until she had attended the return to work meeting given that she was returning sooner than recommended by Dr. A. The respondent referred to the fact that Dr. A in her report had stated that she would review the complainant after eight weeks and that the complainant was seeking a return to work just four weeks later. The complainant submits that the respondent delayed her return to work by forcing her to wait and attend a return to work meeting and that she had during this waiting period been on half pay due to having exhausted her allocation of fully paid sick leave. The complainant has lodged a separate complaint alleging an entitlement to full pay for the two-week period involved.

The complainant told the hearing that following her return from sick leave she was placed in a different work location.   She stated that reason given by the respondent was that the organisations needs had changed and that her previous location now needed more Health care workers and less social care workers and that a social care worker was needed at the new location.   The complainant told the hearing that she was not happy with this new location as it meant she was working on her own a lot and not as part of a team. The complainant told the hearing that she had while in her previous location worked mostly nights on her own. The complainant told the hearing that she did not raise the issue of her dissatisfaction with the new work location with the respondent.  

The complainant stated that she had no access to a computer in the new location and that her annual leave sheet had not been brought to the new location. She stated that she asked several times for her annual leave sheet to be brought to the new location but that it did not happen.

The complainant advised the hearing that the investigation carried out by Ms. O concluded in August 2017.   The investigator had interviewed many staff members and had interviewed some more than once to respond to new evidence and allegations raised.   The allegations were put to Ms. M and witness statements were taken from all named or connected individuals including the complainant.

The investigator on completion of the investigation, submitted a written report of her findings and recommendations to the Director of Human Resources. Copies of all witness statements and notes of meetings were provided to the Commission.     The Investigation Report was sent to the complainant on 1st of August 2017.

The complainant advised the hearing that the outcome of the investigation was that there were ‘no adverse findings’.     The complainant stated that she was not happy with that outcome. The complainant submitted that she had immediately sought to appeal the investigation outcome but stated that she was told that she could not appeal the outcome as the complaint had not been made against her and no finding had been made against or for her.  The respondent had advised her that an appeals mechanism exists only when action is taken by the organisation following adverse findings against a respondent and in this case, she was not the respondent.   The complainant told the hearing that she was advised that she could pursue the matter through the respondent’s grievance procedure.   The complainant did not pursue this through the grievance procedure.

The complainant in response to this stated that she did not have any trust in the Grievance Procedure as she had previously used it and was not happy with the outcome on that occasion. The complainant advised the respondent that she would prefer to pursue matters externally.

The complainant submits that the respondent’s behaviour in assigning her to a new location following her sick leave as well as the failure to permit her an appeal mechanism following the outcome of the external investigation carried out by Ms. O in respect of allegations against Ms. M meant that she had no option but to resign her employment.

The respondent advised the hearing that the complainant had worked for them from 21 September 2015 initially on an on-call relief contract and following which she was awarded a specific purpose contract in February 2016. She resigned her employment on 2nd of August 2017.

The respondent told the hearing that it received the complainant’s resignation on 2nd of August 2017 and that they had asked her to reconsider her resignation.   The complainant declined to reconsider. The respondent told the hearing that it had then asked the complainant to attend an exit meeting to discuss the circumstances surrounding her resignation but that she refused to do so stating that she preferred to pursue matters externally.  

The respondent told the hearing that the complainant had not expressed any dissatisfaction with being moved to a new work location and that the first time this was raised as an issue was in her complaint to the WRC two months after her resignation. The respondent told the hearing that the complainant did not give them any opportunity to seek to resolve this issue before referring her claim to the WRC. The respondent told the hearing that it was aware that the complainant was unhappy with the outcome of the external investigators report which she received on 1st of August 2017 and that she resigned on 2nd of August 2017.

The respondent told the hearing that an anonymous complaint had been made to HIQUA concerning the treatment of residents in a named residential house (location A) in October 2016.  Following from this complaint a Provider Led investigation commenced on 29th of October 2016. This was commenced by Ms. C following an instruction received from Ms. H, Director of Care and Support. Ms. C interviewed all staff from location A as part of the process.   The complainant who was interviewed on 3rd of November 2016 stated that she was concerned that a colleague Ms. M was curt and impatient in her dealings with residents.   The complainant was asked if she had any concerns for the safety of the residents and she replied no and that she all residents were well cared for and she didn’t feel any were fearful.   Ms. H of HR contacted the complainant on 3rd of November to clarify if she had witnessed any safeguarding issue in location A and the complainant clarified that she had not. The Provider led report concluded on 15th of December 2016 with a finding that “there have been no concerns of a safeguarding nature found”

The complainant in the meantime had raised further issues in respect of Ms. Ms behaviour and treatment of residents in a report of 14th of November 2016.   These matters were referred by Mr. P the Regional HR Manager for investigation by an independent external consultant Ms. O.   The respondent advised the hearing that an investigation of this matter took place and that Ms. O external consultant was appointed as investigator.

The respondent told the hearing that numerous investigation meetings took place with staff members who were interviewed, and statements taken from all including Ms. M the subject of the allegations and the complainant who had made the complaint. The respondent provided copies of all statements and minutes of investigation meetings to the hearing. There was a considerable amount of documentation involved.  It is clear from the evidence adduced that the investigator Ms. O had interviewed Ms. M on two occasions on 12th of April 2017 and again on 29th of May 2017.

Ms. O’s investigation report reached a conclusion of ‘no adverse findings’ and this was communicated to the complainant on 1st of August 2017. The complainant was advised that if she was not happy with the outcome of the investigation she could use the Grievance Procedure to pursue any matters with which she felt were outstanding.   The complainant did not pursue this through the Grievance Procedure as she stated that she had no trust in the Grievance Procedure and would prefer to pursue the matter externally. The complainant resigned on 2nd of August 2017.

The respondent advised the hearing that an issue arose in January 2017 in relation to inappropriate posts by the complainant on social media about the respondent, these were addressed by management with the complainant at the time and the matter concluded.

The respondent advised the hearing that the complainant on 22nd of February 2017 wrote to Mr. P regional HR manager with additional complaints alleging that her work pattern had changed negatively resulting in her taking sick leave and alleging discrimination by her line manager resulting in her feeling excluded and stressed.  

Mr. P, HR manager replied to the complainant outlining the procedure for raising grievances and offered the services of the Employee Assistance Service.   A meeting was held with the complainant’s manager Mr. D on 10 of March 2016 to address the concerns outlined in her letter of 22nd of February 2016.     Mr. D addressed the complainants concerns at this meeting and responded to same.   Mr. D outlined that the complainant had raised some historical concerns and suggested that these types of concerns should be raised locally at the time as they occurred, so they can be dealt with quickly. Mr. D also informed the complainants union rep to this effect.

The complainant went out on sick leave on the 11th of March 2016. The complainant followed up by sending Mr. B a list of issues on 21 March 2017 stating that she was not happy with the response to her grievance and requesting a written response to her grievances.   The notes of the meeting were then furnished to the complainant.

The complainant was out on sick leave from 11th of March 2017 to 31 May 2017 and during that time she was referred to the respondent Occupational Health Doctor Dr. A on 20th of April 2016.   Dr. A issued a report on 28th of April 2017 citing the complainants position and stating that the complainant had identified 4 stressors as follows Bullying and Harassment, shift pattern, concerns for safety relating to 1 resident in the house and an ongoing investigation regarding welfare issues in the house’.  

This report stated that the complainant was currently unfit for work but that she was fit to engage regarding her perceived stressors. Dr A recommended that early engagement of both parties would expedite her return to work’. The complainant attended a meeting on 11th of May 2017 with her line manager Mr. D and with Mr. P to discuss Dr. A’s report. The grievance procedure was again set out at this meeting and the complainant was advised of matters that could be raised locally.

Mr. P at the meeting referred to Dr. As report and with reference to perceived stressor of (1) Bullying and Harassment, he gave the complainant a copy of the Dignity & Respect at Work Policy and outlined channels to raise these concerns.   Mr. P also stated that he encouraged the use of the informal process to try and achieve speedy resolution to certain issues but that she could invoke the formal process if wished.

The complainant spoke about Mr. D telephoning her in relation to her visiting her work premises to print off documents while on sick-leave.   Mr. D told the complainant that he had telephoned her as he had been made aware that she had been at her work location printing off documents while on sick-leave, which is unusual and that he wanted to chat about same. He asked if she had rung any manager to say that she would be calling to house while on sick-leave which she had not.   The complainant advised him that she had needed to print out payslips.

In relation to perceived stressor (2) shift pattern, the complainant said that she had no time to renew when coming off nights to work days, e.g. off nights on Monday morning and into work on Wednesday.   It was explained that from November 2016 to April 2017 there were 2 residents going through end of life care and that rosters were put in place to best support their needs. Mr. P advised the complainant that this was no longer the situation. Mr. P gave the complainant a copy of the Grievance procedure and outlined avenues available to her if she has issues in future with her roster and advised her that concerns, should be raised informally with supervisor in the first instance.

Mr. P referred to perceived stressor (3) concerns for safety relating to 1 resident in the house. The complainant said that a resident had been displaying challenging behaviours. It was explained to the complainant that these behaviours were a result of the resident’s dementia and that these behaviours have since settled.

The complainant raised the issue of perceived stressor (4) concerning ‘an ongoing investigation regarding welfare issues in the house’, Mr. P acknowledged that the investigation is difficult for all involved.   He added that considering the information that was reported by the complainant that it was appropriate and necessary that an investigation be undertaken and he hopes that would conclude soon.

The respondent advised the hearing that the complainant was then asked by Mr. P if there were any other issues she wished to raise, and the complainant said she did not.   Mr. P asked if there were any issues outstanding from her grievance letter that she had submitted in February to which Mr. P had responded advising that concerns should be raised locally.   The complainant said that she could not remember the detail, that there is a lot going on with investigation.

The complainant asked that Ms. C not ring her while she is off sick as she said that she finds it hypocritical to have Ms. C ringing asking about her health and considers it harassment.   Mr. P stated that Ms. C is her manager and part of manager’s role is to keep in touch with staff that are on sick leave and see how progressing.   He outlined sick leave procedure and that staff have a responsibility to maintain contact with manager and keep the updated on their progress.  The complainant asked that while the investigation is in progress, that on-going contact be with Mr. D.

Mr. P reiterated the Dignity & Respect at Work Policy and options available to the complainant if she has specific issue with Ms. C.     Mr. P stated that he would schedule a follow-up appointment in 8 weeks as recommended by Dr A.

The respondent advised the hearing that the complainant had contacted them on 31st of March 2017 and stated that she was fit to return to work on 31st of May. She stated that her GP had certified her as fit to return and she attended a further Occupational Health assessment on that date.   The complainant returned to work on 16th of June 2017 following a return to work meeting which took place on 15th of June 2017.   The complainant had moved on to half pay for approx. 2 weeks on 25th of May in accordance with the respondent’s sick leave policy. The complainant disputed this on her return to work and this is the subject of a separate complaint.

The respondent referred to the complaint in respect of the complainant being placed in a different work location from June 2017.  The respondent advised the hearing that the complainant did not raise any issue in respect of the new location and that the first time this was raised was in her complaint to the WRC. The respondent stated that it had not been not given an opportunity to respond to any grievance or issue in respect of this matter and that the complainant had never raised it with them.   The complainant told the hearing that she did not raise the issue of her dissatisfaction with the new work location with the respondent.     The respondent advised the hearing that the complainants contract stated that her location of work is the respondents North East Services or any of the locations attached to this service. The complainant’s new location was still in the North East Services. The complainant at the hearing acknowledged that her contract contains a flexibility clause.   The respondent stated that the complainant never raised any issue with this change of location which it states was implemented due to a need for more Health care workers in the first location and less Social care workers and that a Social care worker was needed in the second location.

The respondent advised the hearing that the investigation carried out by external consultant Ms. O concluded with the issuing of her report on 1st of August 2017.   The investigator interviewed many staff members and interviewed some more than once to respond to new evidence. Allegations raised were put to Ms. M and witness statements were taken from all named or connected individuals including the complainant.   The investigator on completion of the investigation, submitted a written report of her findings and recommendations to the Director of Human Resources.   Copies of all witness statements and notes of meeting were provided.   The Investigation Report was sent to the complainant on 1st of August 2017.

The respondent advised the hearing that the complainant was not happy with the outcome of ‘no adverse findings’.    The complainant sought to appeal the investigation outcome and was told that she could not appeal the outcome as the complaint had not been made against her and no finding had been made against or for her.   The respondent advised her that an appeals mechanism exists only when action is taken by the organisation following adverse findings against a respondent and in this case, she was not the respondent.   The respondent advised the hearing that the complainant had contacted the respondent HR on 2nd of August 2017 stating that she was making a complaint about the investigation outcome and that she was also resigning. The respondent told the hearing that the complainant was advised that she could pursue the matter through the respondent’s grievance procedure.   The complainant did not pursue this through the grievance procedure.   The complainant in response to this stated that she did not have any trust in the Grievance Procedure as she had previously used it and was not happy with the outcome on that occasion.   The complainant advised the respondent that she would prefer to pursue matters externally.  The complainant then gave two weeks’ notice.     The respondent advised the hearing that HR Manager Mr. P emailed the complainant on 22nd of August 2017 requesting that she attend an exit meeting. The complainant refused to attend and Mr. P then urged her to make use of the Grievance Procedure and urged her to reconsider her decision to resign. The complainant indicated that she had no faith in the Grievance procedure as she was unhappy with how her February grievance had been handled and she felt she had been penalised for making a report. Mr. P stated that she could have escalated her grievance to the next level if she had been unhappy with how it was handled. He also stated that she had not yet exhausted the respondent’s internal procedures regarding her complaint about the investigation findings.  The respondent also rejected her allegation that she had been penalised.   Mr. P advised the complainant that he remained available to meet with her at her convenience should she wish. The complainants last day of work was 13th of August 2017 and she was removed from payroll on 3 September 2017.

Constructive Dismissal

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.” Both relate to the behaviour of the employer.

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 “reasonable 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 complainant contends that the actions of the employer left her with no option but to resign from her employment on 2nd of August 2017 with an effective date of 14th of August 2017. She has stated that this was due to the unfair treatment and penalisation she suffered at work after raising serious issues regarding the health, safety and welfare of residents in the care of her employer with Management in or around August 2016.       It is submitted that she also made a protected disclosure to HIQUA on the 25th October 2016 by email at a time when the respondent was not yet registered with HIQUA. She also raised further issues with the respondent in November 2016.

The complainant submits that after raising issues with Management, that she experienced an intolerable working environment and was penalised and treated less favourably than others including but not limited to her work location was changed, she suffered disadvantage, discrimination and loss of earnings (including Holiday Pay).   Furthermore, it is submitted that because of the treatment the complainant was absent from work on certified sick leave because of work related stress for the period 10th March 2017 to the 31st May 2017.  The complainant advised the hearing that she returned to work on 16th of June 2017.   She stated that she did not raise any issues with the respondent in respect of her return to work.     The complainant submitted her complaint to the Commission on 20th of October 2017.  

The complainant told the hearing that her complaint against Ms. M was the subject of an investigation carried out by an external consultant who reached a conclusion of ‘no adverse findings’.     The complainant stated that she was not happy with that outcome and had sought to appeal this investigation outcome but was advised that she could pursue the matter through the respondent’s grievance procedure.  

The complainant told the hearing that she did not pursue the matter through the grievance procedure as she had no faith in the grievance procedure and that she had previously used the grievance procedure in relation to other complaints but was not happy with how her earlier grievance was handled. She did not escalate that grievance to the next level at the time.   The complainant told the hearing that she went on sick leave from 11 March 2017 to 31st of May 2017 and following her return from sick leave she was placed in a different work location.   She stated that she was following her return form sick leave moved to work in a different residential home as the respondent told her that the organisations needs had changed and that more Health care workers were needed at the previous location and less social care workers and that a social care worker was needed at this other location.    The complainant told the hearing that she was not happy with this new location as it meant she was working on her own a lot and not as part of a team.   The complainant told the hearing that she did not raise the issue of her dissatisfaction with the new work location with the respondent.  

The complainant at the hearing also referred to the fact that she had been moved onto half pay for two weeks at the end of her sick leave in accordance with the sick leave policy but stated that this should not have happened as she had advised the respondent that she was fit to return to work on 31st of May but was not permitted to return to work until a return to work meeting had taken place.   This allegation relates to the period from 31st of May 2017 to 15th of June 2017. The respondent stated that this was in accordance with its sick leave policy and that the complainant was notified on 22nd of May 2017 that she was approaching the end of the sick leave full pay allocation and would be moving onto half pay from 31st of My 2017.

The complainant submits that the respondent’s behaviour in assigning her to a new location following her return from sick leave as well as the failure to permit her an appeal mechanism other than the grievance procedure following the outcome of the investigation meant that she had no option but to resign her employment.   The complainants contract states that her location of work is the respondents North East Services or any of the locations attached to this service. The complainant’s new location was still in the North East Services. The complainant at the hearing acknowledged that her contract contains a flexibility clause.   The respondent stated that the complainant never raised any issue with this change of location which it states was implemented due to its having to increase the number of Health care workers in the first location and less Social care workers.

The respondent submits that the complainant has not met either of the criterion set out in the test for a constructive dismissal. The respondent states that it has always operated within the terms of the complainant’s contract and that no contractual violation occurred. The respondent states that there was no repudiation of the contract and no indication that the respondent did not intend to be bound by the terms of the contract. The respondent submits that the termination of employment firstly fails on the contractual test to establish a constructive dismissal. I am satisfied from the totality of the evidence adduced that the complainant has failed to establish that she was entitled to terminate her contract of employment in accordance with the contractual test.

About the reasonableness test, the respondent submits that it acted fair and reasonably always in accordance with its policies best practice and appropriate conduct. The respondent submits that the complainant resigned her position voluntarily on 2nd of August 2017 having refused to fully utilise the grievance procedure and despite being requested to do so several times by the respondent.

The respondent states that the complainant in this regard refused to exhaust internal procedures before making her complaint to the Commission. The respondent in advancing this has cited caselaw of McCormack Vs Dunnes UD1421/2008 in which it was stated that the employee would have to demonstrate that the employers conduct was so unreasonable as to make the continuation of employment “intolerable”.   The complainant has not shown this to be the case.  

In Conway Vs Ulster Bank the complainant was found not to have acted reasonably as she had not substantially used the grievance procedure to remedy her complaints and in and in Travers Vs MBNA Ireland Ltd the requirement to exhaust the grievance procedure is again set out stating that the claimant’s failure to exhaust the grievance procedure proved fatal to the claimant’s case.

The respondent also stated that the complainant fails the ‘reasonableness test’ as she has not invoked or exhausted its internal procedures and that it was not fair or reasonable for the complainant to constructively dismiss herself prior to engaging in the internal procedures.  

Having given a great deal of consideration to the substantial documentation and the totality of the evidence adduced by the parties and given all the circumstances of this case, I do not find that the respondent behaved in such a way that left the complainant with no option but to resign from her employment.   Accordingly, I find that the within complaint is not well founded.

I find that the within complaint is not well founded.

The complainant was employed by the respondent from 21 September 2015 to 2nd of August 2017 as a Social Care Worker.  

The complainant submitted a complaint on 20th October 2017 alleging that she did not receive her paid holiday/annual leave entitlement and seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997.   A hearing of this matter took place on 22nd of October 2018.

The complainant submitted a complaint on 20th October 2017 alleging that she did not receive her paid holiday/annual leave entitlement for 2017.

This matter was raised in the complainant’s complaint to the WRC submitted on 20th of October 2017.

The respondent submits that having reviewed their files, the respondent noticed that it erred in calculating the claimant’s annual leave and public holiday entitlement in the amount of 82.8 hours,

The respondent submitted that these hours would be paid net into the claimant’s bank account as soon as practicable (Outstanding hours multiplied by an hourly rate of €16.21 equates to a gross figure of €1342.86). As such the respondent conceded the claim under the OWT legislation (CA-15147-002).

The complainant submitted that she was not paid the correct amount for her Holiday/Annual Leave entitlements for 2017. The respondent wrote to the Commission prior to the hearing stating that having reviewed their files, the respondent noticed that it erred in calculating the claimant’s annual leave and public holiday entitlement in the amount of 82.8 hours. The respondent stated that these hours would be paid net into the claimant’s bank account as soon as practicable (Outstanding hours multiplied by an hourly rate of €16.21 equates to a gross figure of €1342.86). As such the respondent concedes the claim under the OWT legislation (CA-15147-002).

The complainant was copied with this correspondence and asked if she wished to proceed with this complaint. The complainant by email dated 20 July 2018 responded that she would wait until the respondent paid her the outstanding money owed before she closed the case. The respondent  confirmed on 8th of August 2018 by email to the Commission that this money had been paid to the complainant.

The respondent was advised on 22nd of August that this complaint had not been withdrawn and was still listed for hearing.

The complainant by email dated 31st of August 2018 acknowledged that she had received the wages that were owing to her from the respondent but stated that she wished to keep that part of the case open, as it is evidence in her constructive dismissal case to show how they penalised her.

The complainant at the hearing on 22nd of October 2018 stated that there was still a pay claim outstanding. The complainant acknowledged that her claim in respect of Annual Leave outstanding had been resolved as it had since been paid by the respondent.

The complainant at the hearing submitted that she was owed money in respect of a period from 31 May 2017 to 15th of June 2017 when she was moved from full pay to half pay as she had exhausted the respondents sick pay policy as it applied to full pay. The complainant stated that she should not have moved on to half pay for those two weeks as she was fit and ready to return to work on 31st of May 2017 but that she was required to attend a return to work meeting on 15th of June 2017 before being allowed to return to work on the 16th of June 2017.   This matter was not raised in the complainant’s original complaint form.   This matter was raised at the hearing of the matter on 22nd of October 2018 more than sixteen months after the alleged unlawful deduction of pay.   This is outside of the 6 months’ time limit for submitting a complaint.     Accordingly, I cannot consider this aspect of the complaint.

I find that the within complaint is not well founded.

I find that the within complaint is not well founded.