Complainant

Respondent

Anonymised Parties

A Community Support Worker

A Care and Support Organisation

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-00025215-001

23/01/2019

The issues in contention concern the alleged Constructive Unfair Dismissal of a Support worker by a Care Organisation.

The Complainant commenced with the Respondent in January 2017 as a Community worker on a 20 hour per week basis. In September 2017 additional hours were allocated to facilitate a home visit to a Service User. This did not really work out and the Complainant advised the Respondent that she did not want this home visit arrangement to continue into the New Year. A factor of concern to the Complainant had been the very on/off and loose TOIL arrangements that had been made regarding the Home visit hours.

In the New Year (2018) issues arose in regard to Lone Worker working, general communication issues and interaction with her Manger (Ms. Xa). An unpleasant discussion took place with her Manager (Ms Xa) on the 18th February. The Complainant then e- mailed her concerns to the next level of Management (Ms Xb). A meeting was scheduled but for various reasons did not take place until the 11th June 2018. A Range of detailed proposals were developed but a lot fell by the way side.

In July 2018 an issue arose regarding the number of hours the “Support Hub” was to be open. The HSE funding allowed for 30 hours but due to the lone Worker situation the centre was only open for 20 hours. The Respondent offered to increase by 10 hours and it was made clear that this would be offered to the Complainant. However, this initially positive offer was devalued by the repeated bureaucratic wrangling in the Respondent and the additional questions as to how the new procedures/admin routines in the Hub would be managed/resourced.

It was completely unclear to the Complainant if she would actually ever get the extra 10 hours and if they would be added to her permanent contract. It became most frustrating.   The Complainant felt completely undervalued and undermined. Eventually she had had enough and resigned on the 18th September 2018.

She asked that the Resignation be rescinded on the 26th September citing that her resignation had been born of frustration over the hours/Hub issue and the general lack of professionalism by her Manager regarding same. The Respondent refused to cancel the Resignation. There was no “Cooling Off” period allowed, particularly relevant in this case due to the Respondent previous patterns of on / off decision making.

Furthermore, the general behaviours of the Respondent during 2018 had been completely unreasonable such as to justify a Constructive Dismissal claim.

The Resignation was the only reasonable option left to the Complainant.

The Respondent, in opening, maintained that the Complainant failed to meet any of the standard Legal tests required to successfully pursue a Constructive Dismissal case. These were Unreasonable Behaviour and Breach of Employment contract by the Employer.

None the less the Respondent maintained that the nub of the issue was in relation to the additional 10 hours offer in July 2018. It was pointed out that meetings (9th July and 26th July) had taken palce in relation to plans for the service and latterly on the 17th September when the issues were discussed fully. There could have been no doubt in the Complainant’s mind what was involved and that the additional hours would be part of her permanent contract.

However, by a lengthy e mail of the 18th September (the following day) the Complainant tendered her resignation. She stated

“The Hub has gone way too complicated and has no clear guidelines or resources and the mess over these 10 hours and if I would be offered them etc. Led me to making my decision”

On the 19th September the Complainant requested her annual leave balances be brought up to date and processed. On the 26th the Respondent formally acknowledged her Resignation and suggested an exit Interview. In reply the Complainant suggested that her resignation of the 17th September had been a “knee jerk” reaction to the frustrations over the hours & Hub issues and she wanted to withdraw it. In follow, up meetings and correspondence the Respondent indicated that this was not possible at this stage as the Recruitment process for the Complainant’s replacement was too far advanced and a job offer had been verbally made. There was nothing that could be done.

In Oral submissions the Respondent pointed out that the Resignation had been on the 17th September and the request to withdraw was on the 26th - some 8 days later and could not be described as a knee jerk decision followed by an immediate request to withdraw.

There was also quite a degree of confusion between the reasons in the 17th September resignation e-mail and the reasons in the Request to rescind email of the 26th. Leaving aside other issues such as the time lapse this made the consideration of the Withdrawal e mail more difficult.

It was also clear and made no secret of by the Complainant in September that she had secured a directly comparable position in another Care organisation and would be starting almost immediately.

The Respondent pointed out that the issue of hours had always been made clear, ther were a lot of HSE Funding protocols involved etc and the other communication issues were being handled in the various meeting since February. The Respondent organisation has a well-established internal Grievance policy which the Complainant had never availed of, this being in itself a fundamental flaw in a Constructive Dismissal claim.

In summary the Respondent maintained that the Constructive Dismissal claim was fundamentally legally flawed under any of the normal tests. The resignation was a considered step, late withdrawal request notwithstanding, and could not be seen as a Constructive Dismissal.

Case law was quoted in support specifically UDD 1849 Blake and Kaydee Cosmetics Ltd.

3:1       The Relevant Law.

The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.

In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

“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,…”

As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ 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.”

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.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

“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.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

However, a certain degree of Legal caution is required here.

In the case of Allen v Independent Newspapers, IR [2002] E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.

The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the Respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Respondent in September 2000.

She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The tribunal therefore accepted the claimant’s assertion that she could have no confidence in the Respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that

“the Respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.

In summary therefore, a failure to use internal Procedures prior to a Resignation must be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.

However, in all cases the facts of the case and the specific evidence presented have to be considered in reaching any conclusions.

I will now move to address the evidence presented.

3:2         Consideration of the Evidence.

To best deal with this matter I will look at the legal tests in a Constructive Dismissal case, these are essentially Breach of Contract, Unreasonable Behaviour and Use of Internal Procedures.

3:2:1       Breach of Contract

In a Constructive Dismissal case the Breach of the Employment Contract must be of a most serious nature. Normally this involves the non-payment of wages or fundamental changes to the employment relationship.

In this case and having reviewed the evidence I could not see any fundamental breaches of the employment contract. It is fair to say that much argument rested on the terms of the new 10 hours work and how it would be incorporated into a new arrangement, but this was not of direct impact on the existing arrangements. It did not fundamentally alter existing employment arrangements.

All things considered I did not see any fundamental breaches of the Employment Contract such as to justify a Constructive Dismissal resignation.

3:2:2         Unreasonable Behaviours

There was considerable oral evidence and discussion on this point. The relationship with the Local Manger/Supervisor, Ms. Xa, had become strained and the alleged endless goings and coming regarding the extra 10 hours was no doubt frustrating. However, the relationship with the next level Manger, Mr. Xb seemed to have remained good. It was clearly explained that the HUB was subject to HSE Funding and much regulatory oversight. The issues regarding the HUB becoming overly “Complicated” in the Complainant’s eyes, was in large measure due to HSE regulatory requirements. Quick decisions were not really possible.

Again, having considered all the evidence both written and oral I could not see any pattern of Unreasonable Behaviours so bad as to warrant a successful Constructive Dismissal claim.

3:2:3     Use of Internal Procedures /Grievance procedures.

The Respondent has a well stablished suite of Personnel procedures especially in the Grievance area. None of these procedures were ever used by the Complainant. She might be forgiven for this as she was involved in considerable internal consultations during July to September regarding the extra Hours and the HUB. She made her views well known to local Managers.

The legal position as quoted above from Redmond, Dismissal Law in Ireland (2002): in the Legal Section is that the use of internal procedures is an imperative in Resignations. This did not happen her. It is a weakness in the Constructive Dismissal claim here.

3:2:4       Other evidence / the Resignation e mail of the 18th September and the Withdrawal e mail of the 26th September. Legal position /Precedents.

The issue of the resignation E mail of the 18th and the withdrawal E mail of the 26th is central. / It was clear from the evidence both Written and Oral that the Complainant had secured an offer of alternative employment in a related Sector prior to the 18th September. The alternative employment was in a Town some medium distance from the Town where the Respondent was based. Initially his did not appear to have been an issue but it appeared, in Oral evidence, to have later weighed on the Complainant. None the less the Complainant had made it publicly know that she was leaving and had inquired inquire regarding her Annual leave balances.        

Regarding Legal precedents the issue of Resignations is considered at length in Redmond on Dismissal Law -Third Edition 2017 Section Para 22:22.

Para 22.25“Where unambiguous words of resignation are used by an employee to an employer, and are so understood by the employer, generally it is safe to conclude the employee has resigned. -----however, context is everything” Page 495.       (Underlined by Adjudication Officer)

If, therefore, an employee tries to withdraw a notice of resignation, an employer should ask itself whether special circumstances exist. If so they may cast doubt on whether the resignation was really intended. The employer should investigate the facts, to see whether to a reasonable employer an intention to resign is the correct interpretation of facts. Page 496

Accordingly following Redmond above the key question here is what if any special circumstances existed to justify / require acceptance of the withdrawal by the Respondent employer.

Time limits are relevant – the withdrawal was not requested until 8 days after the resignation. In this context this is a significant time gap. In addition, during the 8 days there was factual, (regrading Annual Leave balances (19th September) communication regarding the resignation.

As mentioned in Redmond the state of mind of the Complainant is a relevant consideration – it appeared to all concerned that the Complainant was not suffering any incapacities as to her ability to take informed decisions.

She had discussed the alternative work offer before the Resignation - the meetings on the 17th September had been detailed regarding the HUB.

All told I had to come to the view that the Resignation was a considered decision, maybe born out of frustration but a resignation none the less.

Leaving the Withdrawal until the 26th places it outside of a reasonable “cooling off” period. Practically the 18th was a Tuesday and the 26th was Wednesday of the following week. It would be a reasonable position to say that the weekend of the 22/23rd might be a time for reflection -time for cooling off - and a withdrawal to be indicated, for the sake of the argument, first thing on Monday morning the 24th. This did not happen.          

I had to find that the resignation stands. I did not see any “special circumstances” following Redmond above to allow the Withdrawal to rescind the Resignation.

As an aside I did not think that the case cited by the Complainant UD 2116/2011 was strictly factually comparable in support of the case in hand.

3:3     Overall Conclusion

Taking the Three Legal tests involved in a Constructive Dismissal case (discussed above) I did not find that any were supportive of the Complainant’s case.

I also find that there was not a strong enough case to support the Withdrawal of Resignation argument.

Accordingly, I have to find the complaint is not well founded and set it aside. The Constructive Dismissal case is not made .                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

Act

Complaint/Dispute Reference No.

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

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

CA-00025215-001

Complaint for Constructive Dismissal is not well founded.