Act

Complaint Reference No.

Date of Receipt

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

CA-00016831-001

11/01/2018

The complainant was employed as a care worker with the respondent from the 18th September 2000 to the 31st August 2017. A trust in care complaint was made about the complainant on the 21st October 2016 and she was suspended one month later. The complainant resigned on the 31st August 2017, the day on which the respondent informed her she was to be dismissed. The complainant asserts that this was in contravention of the Unfair Dismissals Act; the respondent denies the claim.

On the 21st October 2016, the complainant volunteered to bring a client to the post office. She was busy and asked the client to wait. The client cannot speak very well and said that she wanted to go immediately. Another staff member said that she would bring the client, but this client would not agree to this. The complainant asked the client to wait. She had to hold the back of the wheelchair as it would go flying. The client was giving out to staff. The complainant had been advised by her manager to walk away when this client acted up. She continued to do what she was doing, and another staff member said that the client was again looking for her. The complainant approached the client, who was cursing at the colleague. The complainant said that she would not be bringing her because of her behaviour. A colleague brought the client to the post office.

The complainant wrote a note in the client’s file and reported her behaviour to the manager. The client was known for this behaviour. There was no way that the client could have dictated the statement of the 21st October 2016, recorded by a named colleague. There has been ongoing friction between her and this colleague for some years. Other allegations did not get this far.

The client had a case pending against the respondent because of a fall on the bus when she was being brought to hospital. The client went to court during time the complainant was suspended, and the case settled.

The complainant was suspended a month later. If she was a danger, why was she allowed continue to work after the incident? The complainant was paid during the suspension. She objected to the reliance on the balance of probabilities test. The complainant did not agree with the investigation findings. The punishment did not fit the crime.

The complainant said that she and her representative attended the meeting of the 31st August 2017. The HR Managerwas reading out the disciplinary outcome letter saying why the complainant was being dismissed. The complainant left and said that she was not accepting it. The respondent offered to give the complainant one month’s notice pay and a reference. This was negotiated on her behalf by her representative. She was not prepared to apologise to the CEO, as suggested by the representative.

The complainant said she resigned because they were not giving her a reference. The respondent later only provided a basic reference. She did not work after the end of this employment. She approached a supermarket, but they said that they could not take her on because of the reference. She cannot now do anything involving caring.

The complainant outlined that she never saw the grievance procedure. She was told that there was no appeal. The complainant said that the day of the adjudication was the first time she had seen the letter of dismissal of the 31st August 2017. The complainant said that she resigned because she had no choice. She needed a reference for a new job. It was “be sacked or get a reference”. It was put to the complainant that she resigned to avoid being dismissed. The representative told her that she could not appeal. He put her resignation on the table without her permission. The complainant said that she resigned under duress and was not given the option of appealing. The balance of probabilities test was not appropriate.

The complainant later accepted that she had seen the grievance procedure. While she resigned, she did not admit guilt. She commented that clients should have been asked to give witness statements of the incident. The process was delayed.

The respondent submitted that fact of the dismissal is in dispute and that the complainant resigned her employment.There was a disciplinary meeting on the 20th July and the outcome meeting was in August. The complainant resigned at the disciplinary outcome meeting of the 31st August. The representative approached the respondent to ask that the complainant be allowed resign so that it would be easier for her to find other work. The respondent agreed to this despite there being an upheld Trust in Care finding against the complainant. This is clear from the representative’s handwritten note of the meeting. The disciplinary outcome was to be delivered that day. The complainant took matters into her own hand and the respondent accepted her resignation. All three investigation findings were followed through in the disciplinary process.

The respondent submitted that the disciplinary route was not closed and there was an appeal. The representative referred to “appeal points” in his notes. The complainant could have availed a grievance procedure, but she resigned. The complainant had a copy of the disciplinary procedure, which included the appeal process. The disciplinary process was not completed, and the complainant pre-empted this by resigning. The complainant did not withdraw her resignation. The complainant could have appealed any sanction and lodged a grievance. The respondent followed through on the Trust in Care policy. The respondent described the client as “feisty” but she could be pleasant. It accepted that the client could be angry, but a support worker was expected to deal with this.

The respondent outlined that the terms of reference of the investigation were clear about the incidents. It was the complainant’s representative who put resignation on the table. Many employers only give statements of employment as references. The grievance procedure was on a shared resource for staff to access.

The HR Manager outlined that she prepared the disciplinary outcome letter and gave copies to the complainant and her representative. After she finished reading the letter, the representative asked for a break and the HR Manager took back the letters. She then spoke to the representative, who suggested the complainant resign. The respondent gave this close consideration and spoke to senior management.

The respondent is usually sent forms to fill in for references and would have stated that the complainant resigned. For any caring role, they would have referred to the Trust in Care investigation. There were no requests for a reference in this case.

The complainant worked for the respondent for about 17 years. She carried out a caring function, tending to clients of the respondent. The complainant’s employment came to an end following a Trust in Care complaint made by a client. This related to an incident on the 21st October 2016 where a wheelchair-bound client wished to visit the post office. This client wished for the complainant to accompany her, a request the complainant did not immediately accede to. The Trust in Care complaint related to an allegation of “abuse” and was investigated as such. This was subject to a preliminary screening and an investigation, concluding on the 28th June 2017. The investigation team invoked the disciplinary procedure, leading to a disciplinary interview of the 20th July 2017. There was a further meeting on the 31st August 2017 where the respondent reported on the findings of the disciplinary process. It is during this meeting that the complainant resigned. It was apparent that the outcome of the disciplinary process was the complainant’s dismissal.

The complainant submitted a grievance in December 2017, during the period she was suspended. The complainant attended a grievance meeting on the 29th March 2017, which concluded that the grievance issues (relating to interactions with two staff and acting up) would be set aside pending the conclusion of the investigation.

The investigation made three findings of fact, which led to the invocation of the disciplinary process. The first was that the complainant shook the client’s wheelchair during the incident of the 21st October 2016. The second related to the manner the complainant spoke to the client during this interaction, i.e. that she gave out to her. The third was that the complainant “punished” the client in refusing to take the client to the post office and that another member of staff had to do so. The complainant did not accept the veracity of these allegations, stating that the client could be difficult and that she had withdrawn from the situation rather than refused to take the client. The complainant also refers to interpersonal difficulties with a colleague, who supported the client in making the initial Trust in Care complaint. The complainant also challenges the use of the balance of probabilities test in assessing the witness statements and other evidence.

In assessing the complaint, the first question is whether this is a case of dismissal or constructive dismissal. If the respondent dismissed the complainant, then it must show that the dismissal was not unfair. On the other hand, if the complainant resigned, it is for her to show that she is entitled to claim constructive dismissal, in accordance with the legal test set out below. This case is unusual as there is both a letter of resignation and a letter of dismissal dated the 31st August 2017.

During the adjudication, the complainant indicated that she was not given a copy of the respondent’s letter of the 31st August 2017 to keep. I accept that it was given to the complainant and then taken back by the respondent following the resignation. It is clear, however, that this letter was the document the respondent read out during the disciplinary outcome meeting. It is also clear that rather than wait for the respondent to finish the meeting, the complainant and/or her representative sought to negotiate the ending of her employment. I accept that the complainant was understandably concerned about getting other employment and the impact of a dismissal based on a Trust in Care or abuse allegation. The respondent, however, had not finalised the complainant’s dismissal and it is undeniable that she resigned. This is, therefore, a case of constructive dismissal. The legal burden, therefore, falls on the complainant to show that she was constructively dismissed.

Section 1(b) of the Unfair Dismissals Act states:

“dismissal”, in relation to an employee, means— …

“(b) 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 classic formulation of the legal test in respect of constructive dismissal was set out in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. This laid out two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as: “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.” The ‘reasonableness test’ assesses the conduct of the employer and whether it “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.” A claimant must meet one or other of the tests but is not required to meet both.

In Berber v Dunnes Stores [2009] 20 E.L.R. 61, the Supreme Court stated that mutual trust and confidence is an implied term in every contract of employment. The Court held “There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.”

Moreover, the Supreme Court in Berber set out the following approach in assessing whether a contractual term of mutual trust and confidence was repudiated or broken by an employer’s conduct:

“1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at. 4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

The respondent opened the case of Conway v Ulster Bank Ltd (UD 474/1981). This case arose when the employee resigned following her manager’s proposal that she transfer from the Sligo branch of the bank to one in Ballina. The employee did not accede to the proposed transfer. In assessing whether the employee had met the test of constructive dismissal, the Tribunal first considered whether the proposed transfer amounted to a repudiation of contract. It concluded that while the employer “may have been misused” the transfer facility provided by the contract, the employer had not demonstrated that it no longer intended to be bound by the contract of employment. Having completed its analysis of the contract test, the EAT considered whether it had been reasonable in the circumstances for the employee to resign. It is in the context of its analysis of the second element of the constructive dismissal test that the Tribunal’s much-quoted dicta of an employee having to “substantially utilise” a grievance process was made. The dicta was not made in respect of the Tribunal’s analysis of whether there had been repudiation of contract, including breach of the contractual term of mutual trust and confidence (as considered in Berber).

The question in the current case is whether the complainant has met either test for constructive dismissal. In first assessing whether the respondent can be held to have repudiated the contract of employment, I note the detailed preliminary screening, investigation and disciplinary processes. While this was a drawn-out process, it cannot be described as oppressive. The complainant was provided with witness statements and given the opportunity to reply. While the complainant questions the justification of her suspension, this was a step the respondent was entitled to take according to its policies. It follows that there was no repudiation of contract.

In respect of whether it was reasonable for the complainant to resign in the circumstances, I note that she had previously raised a grievance. I also note that the complainant challenged the three investigation findings made against her and at the disciplinary hearing, raised the client’s challenging behaviour. In respect of the investigation findings, I note that the respondent investigation team considered witness statements regarding the allegations pertaining to the wheelchair and the words exchanged by the complainant and the client. The balance of probabilities test is the appropriate test for such investigations. The investigation team had grounds to reach the first two findings in respect of the complainant. There was, however, no basis for the third finding that the complainant “punished” the client. It is certainly true that the complainant did not take the client to the post office and that a colleague did so. The complainant said she withdrew from the situation. Given what had taken place (the incident with the wheelchair and what is described as an argument), there was no way the complainant could continue to interact with the client. It was wholly unreasonable for the respondent to determine that this amounted to “punishment”. The complainant was damned if she did and damned if she didn’t.

The disciplinary process letter concluded that there was “no reason to overturn the investigation finding”. At the disciplinary process, the complainant’s representative emphasised that she had an unblemished record with the respondent (this was supported by references submitted by the complainant). In this context, it is striking that the disciplinary outcome letter refers to her not advancing any mitigating factors. It is significant that the disciplinary outcome letter refers to enquiries made after the 20th July meeting which ascertained that there were file notes of September and November 2015 relating to corrective action and the complainant’s behaviour. This information was never put to the complainant. The letter refers to this as “comment” on her representative’s submission, but paradoxically says that this does not form part of the decision to dismiss. This is clearly untenable. A significant mitigation was made on the complainant’s behalf but discounted, in breach of fair procedures, from having “influence … on a disciplinary sanction”.

This is, however, a case of constructive dismissal. In assessing whether the complainant has met the test of constructive dismissal in respect of reasonableness, I note that the disciplinary process had not come to an end. While the respondent had decided to dismiss the complainant, she still had the opportunity to challenge the soundness of the dismissal, including whether the sanction was fair. There remained significant issues to play for, relating both to the grounds of dismissal and proportionality. Even if the complainant did not leave the meeting with the letter of dismissal, she could have sought to appeal the decision. She did not seek to withdraw her resignation, even after receiving the reference. The complainant did not ask for time to consider her options. Taking these factors together, the complaint of constructive dismissal is not well founded.

CA-00016831-001

For the reasons set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is not well founded.

Unfair Dismissal

Fact of dismissal in dispute

Constructive dismissal

Berber v Dunnes Stores [2009] 20 E.L.R. 61

Conway v Ulster Bank Ltd (UD 474/1981)

Trust in Care investigation