Complainant

Respondent

Anonymised Parties

A Care Worker

A Nursing Home

Representatives

Self-Represented

Organic HRM Consultants

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-00020761-001

24/07/2018

The issues in contention concern an alleged Constructive Dismissal from a Nursing and Convalescent Home.

The Complainant commenced employment as a Care Assistant with the Respondent Nursing Home in October 2011. Apart from some minor issues things had progressed satisfactorily until 26th April 2018 when a complaint was made against her by a Residents relative.

The following day an investigation was commenced by the Respondent and the Complainant suspended with pay.

A disciplinary meeting took place on the 14th May. No formal decision was given at this meeting but was to be considered. The following day, the 15th, a fellow worker was in conversation with the Respondent Principal (Ms Xa) and a message was communicated to the Complainant that it would be better for her to resign voluntarily with a good reference rather than undergo a formal Dismissal. She was given until the 16th, the next day, to make up her mind. The clear implication was that the Complainant would be very much at a loss in seeking other employment if she was dismissed without a Reference as opposed to resigning with a Reference.

The Complainant took this to be an Ultimatum, issued vis her colleague as a messenger, and she resigned the following day, the 16th May 2018. It was a decision she had been most unfairly pressurised into making.

The Investigation and Disciplinary process had been unfair to her from the start. The suggestion that she should resign as a result of the incident involving the Resident (Mrs.Z) was completely disproportionate.

An Oral and Written submission was presented by the Respondent. The Respondent operates a Convalescent and Nursing Home in the Midlands. It is operated to the highest standards and overseen by HIQUA. The Complainant, while a very good and dependable worker, had a rather unfortunate prior history of incidents involving vulnerable residents. A number of these were mentioned to the Oral Hearing. She had received written warnings in relation to some of these.

The situation on the 26th April had involved a serious complaint by Ms. Za concerning the treatment of her Grandmother (Mrs Z) by the Complainant. The Complainant was accused of using loud and abuse language regarding a difficulty that had arisen in the care of Mrs Z. The Granddaughter was physically afraid for the welfare of Mrs Z if she remained in the care of the Complainant.

The Complainant was suspended to allow for an Investigation and a Disciplinary Hearing took place on the 14th May. The Respondent emphasised that no formal decision was taken or communicated at the conclusion of this meeting and time to consider matters was being taken.

The following day (the 15th) a fellow worker (Mr Xb) approached the Respondent Principal (Ms. Xa) to briefly discuss the case. This was unsolicited, and the Respondent certainly did not issue any ultimatum as suggested. The Respondent informed (Mr. Xb) that no decision had been taken at this stage.

The following day the 16th the Complainant came to the Office and handed in her resignation.

The Respondent emphasised that no formal decision following the Disciplinary meeting had ever issued and that the Complainant had not utilised any Grievance or Appeal Procedures in relation to the issue.

In oral evidence the Respondent maintained that the Resignation was regretted, the Complainant was a good worker, albeit with some relationship difficulties with some vulnerable residents and that no decision to dismiss had been taken by the 16th May.

The Resignation was a completely premature decision and was completely unwarranted. The Home operates to the highest standards on Patient care and is Audited, without incident, by HIQUA

3:1       The relevant Law

The Unfair Dismissals Act, 1977 and SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures. The role of Natural Justice is paramount and is emphasised by numerous legal precedents. The landmark case of Frizelle v New Ross Credit Union Ltd, [1997] IEHC 137 Flood J. stated

“The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

In a case of Constructive dismissal, it is now well accepted law that two basic legal tests are required to consider a case -these are

(1) Fundamental Breach of the contract of employment such as to render a Resignation the only reasonable course of action for an Employee and

(2) Unreasonable Behaviour by an Employer so egregious, so bad, as the leave the Employee with no reasonable option but to resign.

In addition, Legal Precedent also places considerable reliance on the use or non-Use of Employment procedures, Grievance Procedures etc by an Employee prior to a resignation.

However, all cases rest on their own facts and circumstances and it is necessary to consider these.

3:2         Consideration of the Evidence presented. / Background

Both parties gave extensive Oral evidence supported by a detailed Written submission from the Respondent.

By way of background both Parties agreed that the operating environment in Nursing Homes had changed a lot in recent years with the marked increase in elderly patients with severe Dementia. They were patients that required a lot of support. The Complainant agreed that she had found this change in patient profile stressful and challenging for herself.

It was agreed that there had been a few incidents involving residents over the previous years and that written warnings had been given. An issue had also arisen as to the number of Tattoos the Complainant had and how they were covered up or otherwise by her Uniform. Some of the Patients had found the Tattoos upsetting. There was no doubt from the evidence that the situation involving the Complainant was a cause for concern to the Respondent but not such as to warrant a Dismissal.

Written evidence was given of a Clinical Governance meeting on the 10th May where it was decided that the Complainant should be taken off active vulnerable patient interaction and other work options explored for her in the home.

Regarding the incident on the 26th April the substance of the Complaint was that the Complainant had been loud and verbally abuse regarding Resident (Mrs Z) and had verbally threatened to “XXX Kill her”.

The Respondent had taken a written statement and had followed up with the Granddaughter of Mrs Z who had made the Complaint. At the Disciplinary meeting the Complainant had in large part admitted that she had openly complained about Mrs Z but denied using the XX words in regard to “killing her”.

The circumstances surrounding the intervention by a colleague, Mr. Xb, on the 15th were contested and unclear. Mr. Xb did not give evidence and it was a matter of considering what was effectively hearsay evidence. He was without doubt well motivated but went beyond his brief. He was not the Complainant’s Representative at the Disciplinary Hearing and the Respondent had confirmed to him that no decision had been made at this stage. He was not engaged as a “back door” messenger by the Respondent.

3:3           A Constructive Dismissal claim and the legal Tests

3:3:1:     Fundamental Breach of Contract.

There was no evidence of any fundamental Breach of the employment Contract such as to justify a resignation. The Complainant was paid, and work as normal was provided.

3:3:2:       Unreasonable Behaviours by the Employer so bad as to justify a Resignation.

There was no evidence here of any unreasonable behaviours by the Employer. Correspondence regarding meetings was in order, witness had been interviewed and while some opportunities to allow the Complainant a cross examination of Ms, Za-the Granddaughter of Mrs Z might have been helpful it was not a fatal flaw in the case. A witness statement was provided by a colleague of the Complainant (Ms.Xd) which largely confirmed the incident but without references to the alleged colourful language.

The plain reality, from the oral evidence, was that the Complainant, obviously in concert with Mr.Xb, had decided to “cut her perceived losses” so to speak and make a resignation before a formal outcome from the Respondent was issued. This was a premature decision and effectively ruled out any chance of making an Appeal against a Dismissal decision if one had actually occurred.

There was no evidence of Unreazonable Behaviours by the Employer such as to warrant a Resignation. Legal precedents are strong on the burden of proof required of a Complainant here and the Complainant has not achieved the required legal standard.

3:3:3:        Use of Procedures

Legal Precedents are also particularly strong on the strict onus on an employee not to make premature resignations and to utilise all available opportunities to appeal any decisions. This did not happen in this case.

The question might arise here as to whether or not the Complainant felt strongly pressurised following the Disciplinary meeting on the 14th. There was a good personal relationship between the parties and the record of the meeting does not display an antagonistic tone. The record of the meeting also clearly indicates that a decision was going to be considered and there was no guarantee that it would be a removal from employment.

3:4       Final Conclusion.

Taking all the evidence into account the claim fails to establish a sound case under either of the Legal Tests or the Procedural requirements set out above for a Constructive Dismissal.

In plain English the Complainant made a hasty decision to resign, possibly in concert with Mr. Xb, and cannot now claim it was a Constructive Dismissal.

Accordingly, the claim must fail.

Act

Complaint/Dispute Reference No.

Summary Decision /Please refer to Section 3 above for detailed reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020761-001

Claim for constructive Dismissal fails. Case not well founded.