Complainant

Respondent

Anonymised Parties

A care worker

A care provider

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-00014972-001

13/10/2017

The complainant resigned in April 2017 following the instigation of a Trust in Care process arising from an incident of the 3rd February 2016 and her subsequent suspension of 4th July 2016. The Trust in Care process was still in being as of her resignation 14 months after the incident. The complainant asserts that she was constructively dismissed, while the respondent denies the claim.

The complaint of unfair dismissal was referred to the Workplace Relations Commission on the 13th October 2017. On the 5th April 2017, the complainant resigned in the following terms: “I hereby tender my resignation with [the respondent] with immediate effect. In line with the notice period my last working day will be the 17th April 2017.”

The question to be determined is whether the date of dismissal is the 5th or the 17th April. If it is the 5th April, the complaint is lodged outside the six-month limitation period provided by section 8 of the Unfair Dismissals Act; the complainant must then show reasonable cause for the late submission of the complaint. If the date of dismissal is held as the 17th April, then the complaint was made within six months.

This issue was addressed on the first day of adjudication. The respondent submitted that the date of dismissal is the date on which the dismissal crystallises, i.e. the date on which the resignation was tendered. It submitted that a notice period should not be included in calculating a date of dismissal in a case of constructive dismissal.

The respondent referred to paras 21.72 to 21.79 of Redmond on Dismissal Law, 3rd edition. It referred to Stamp v McGrath UD 1243/1983 which held that the reference to “date of dismissal” in section 1(b) [i.e. the inclusion of a contractual or statutory notice period] applied only to a dismissal by an employer and not where an employee resigns. In Stamp v McGrath, the EAT held that the employee was not able to count their contractual notice to bring the claim within the six-month limitation period. The respondent submitted that Stamp v McGrath applied to all cases of constructive dismissal, i.e. with or without notice. A notice period should be discounted in a case of constructive dismissal.

The respondent further relied on McManus v St Vincent’s University Hospital UD 2270/2011 which held “time starts to run from the date of termination … and in this instance the time started to run at the date the resignation is tendered, as was always intended by the claimant, and not disclosed on the P45.” The respondent relied on ADJ-00002571. In reply, the complainant relied on the definition of ‘date of dismissal’ in section 1(a), stating that the statutory date of dismissal was the 17th April 2017.

In assessing the evidence in this instance, I note that this is not a case where the employee ends the employment relationship on one date and seeks to rely on a contractual or statutory notice period to hold that there is a later date of dismissal (as arose in Stamp v McGrath). In this case, the complainant resigned “with immediate effect” and states “her last working day will be the 17th April 2017.”

In Shinkwin v Millett EED044, the Labour Court held

“A resignation is a unilateral act which, if expressed in unambiguous and unconditional terms, brings a contract of employment to an end. The contract cannot be reconstructed by the subsequent unilateral withdrawal of the resignation. Where adequate notice is given, the contract is generally terminated in accordance with its terms and since there is no repudiation the acceptance of the resignation by the employer is not required in order to determine the contract.”

Section 1 of the Unfair Dismissals Act provides:

“date of dismissal” means—

(a) where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973, the date on which that notice expires.

(b) where either prior notice of such termination is not given or the notice given does not comply with the provisions of the contract of employment or Minimum Notice and Terms of Employment Act, 1973, the date on which such a notice would have expired, if it had been given on the date of such termination and had been expressed to expire on the later of the following dates—

(i) the earliest date that would be in compliance with the provisions of the contract of employment,

(ii) the earliest date that would be in compliance with the provisions of the Minimum Notice and Terms of Employment Act, 1973…”

Applying the Labour Court authority in Shinkwin v Millett and the statutory definition of dismissal, I find that the date of dismissal was the 17th April 2017. This is a resignation that fell within the ambit of subsection (a). While the resignation of the 5th April 2017 refers to immediate effect, this must be read in conjunction with the further words giving the complainant’s “last working day” as the 17th April 2017. The complainant gave notice to end her employment and the reference to “last working day” indicates that this was the date she intended her employment to end.

If the resignation had not included the words “In line with the notice period my last working day will be the 17th April 2017”, the complainant would not be able to rely on a notice period for a date of dismissal later than the 5th April (per Stamp v McGrath). This is an issue to be determined according to the circumstances of a case, as is clear in the McManus case and its reference to “in this instance”.

In conclusion, a resignation is the employee’s unilateral act of ending the employment relationship, with or without notice. In a claim of constructive dismissal, where notice is not given, the employee is not able to invoke a contractual or statutory notice period to rely on a date of dismissal later than the date of the unilateral act. Also in a case of constructive dismissal, where notice is given, the employee can give notice to end the employment relationship with the last day of the notice period being the date of dismissal.

It follows that the date of dismissal was the 17th April 2017 and the complaint of Unfair Dismissal was brought to the Workplace Relations Commission within six months of this date.

The complainant said she resorted to resigning but loved working for the respondent. The Trust in Care process and her suspension had gone on for a lengthy period. It was only after her resignation that she was invited to the investigation. The complainant commenced her new employment on the 27th April 2017 and this was in a different sphere. She earned less in this role, a loss of about €8,000 per year. She faced a longer commute.

The complainant worked with a named colleague in the PE department and found this difficult. She brought this issue to the respondent’s HR department, but nothing came of it. The complainant lodged her grievance in January 2015 and went out on stress leave. She returned to work in May 2015. She took the option of working in the respite centre. She expected to return to her normal hours in the PE role, but this was not facilitated. This PE role was given to an external person. The complainant said that she was shouted at by the HR Director at meetings, for example in early 2015. She did not find the grievance procedure helpful.

In respect of the letter of resignation, the complainant said that she had many years of happiness working for the respondent. She did not want to air her views in the letter of resignation. She went through a lot of stress in the last three or four years and this was not a nice experience. The children were “great” and the complainant had great times and did not want to disregard this. She knew that she did not do anything wrong and had to move on with her life. She asked for responses and did not get anything. In the letter of the 6th January 2017, she asked for progress but did not receive clarity. It was under investigation from the 4th July 2016 and she wanted to move on.

The complainant said she resigned for the following reasons. There was one meeting in about May 2016 in accordance with the Trust in Care policy as a child was injured. The complainant went through the incident of the 3rd February and explained her involvement. Everyone else was spoken to. Her line manager asked shortly after the incident for an incident report, but there was no incident to report on. They noticed something on the day but did not know when it happened. At the July meeting, everyone was asked about their day and the complainant was asked about the client’s injury. On the 4th July 2016, the complainant was told that all avenues pointed to her. The complainant commented that she was becoming more of a recluse over the long period of suspension. The complainant said that she felt forced to resign as she was not getting answers to her questions.

The complainant outlined that she wanted to continue to work with children but felt that she needed a career change. She applied for jobs in other areas and started a job in financial compliance after a few weeks. She had been idle for too long and felt that she could not apply for other roles working with children. She took a wage cut in her new role of about €600 per month. It was also a longer commute. Working with the children was special and they deserve the best. The complainant felt that the allegation itself meant she was afraid to look for similar roles. No one else was suspended. The complainant outlined that she could not attend the investigation meeting as she was then in her new job. She did not think any good would come of it. She wondered why they continued with the investigation when she had resigned.

In questioning, the complainant was not aware that the grievance procedure allowed her to speak with a manager other than the HR Director. It was put to the complainant that she could have appealed to the Chairperson, the board or to the WRC; she replied that she had exhausted the system with her letters. It was put to the complainant that if she was unhappy in late 2016 with the respondent’s letters, she should have raised this with the CEO or the board; she accepted that she had not done so. It was put to the complainant that she had been happy with an informal investigation following her bullying complaint in 2015. It was put to the complainant that there were interim arrangements to facilitate her return to work pending the resolution of the 2015 grievance; she replied that they were not satisfactory. It was not clear that the care role was full time and the bullying issue was still not addressed. It was put to the complainant that her PE role was made redundant and she was allocated a different role; she replied that she had not been told that her role was made redundant.

It was put to the complainant that the culmination of the preliminary screening was that there was a case to answer regarding a fall in the shower; she replied that she was informed at the 4th July meeting that it all pointed to her. It was put to the complainant that the incident involved a colleague coming to assist the complainant when the client was on the floor; she replied that the child was not crying and had sat down. There was no incident. It was put to the complainant that the questions she raised in the correspondence were for the investigation to consider; she replied that this was not clear. She said that the procedure had to be carried out promptly and with due care for the employee.

It was put to the complainant that in her letter of resignation, she had thanked the respondent and had not said that she was aggrieved and had no option but to resign. It was put to the complainant that she never raised a grievance about the length of the process; she replied that she sent emails asking for answers. She was not aware of the stages in the process. It was put to the complainant that she had been informed that the matter was going to investigation and this would be done by a named investigator; she replied that this was not clear to her. It was put to the complainant that she should still have raised a grievance as she had her contract and representation; she replied that she was aggrieved, upset and had been shouted out. She was forced to walk away from the role and would not send a nasty letter. She found employment two weeks later and had applied for new roles in April.

In closing submissions, the complainant asked what options she had. She was put through an investigation process after a preliminary screening and was left in limbo for far longer than necessary. If procedures had been followed, answers would have been given. She engaged with the process and asked questions, but no answers were forthcoming. She was left out in the cold and had to cut the rope herself.

The respondent outlined that the Trust in Care policy required screening of an incident and the screening portfolio was sent to the complainant. This did not require findings of fact and assessed whether abuse or neglect could have occurred. The complainant was suspended at the start of the investigation. She was also out on sick leave at this time. There were other incidents, for example a cot barrier being left down, and a near-miss with medication. The complainant was suspended in July 2016 and provided a dossier to reply to. She did so in late September and the company responded in early October. The investigator was appointed in February 2017. The respondent last wrote to the complainant on the 3rd April. The respondent reported these matters to the HSE and HIQA.

The respondent carried out structural changes in early 2015 so that the streams between the separately funded school and respite centre became more clearly defined. Some employees had overlapping posts and there was a redundancy process for roles that ought not to have existed. The complainant’s role in the school became redundant and she was provided with an alternative role. The recruitment of any PE post in the school was separate.

The HR Director outlined that the complainant had previously worked in the respite centre and was aware of the clients’ complex medical needs. The complainant had accepted this role after the restructuring. He affirmed that he never shouted at the complainant during any meeting. The complainant had shouted at him during the June 2016 meeting and her representative pleaded with her to stay. The meeting of the 4th July followed the in-depth preliminary screening process involving 23 witness statements. It was essential to progress this to investigation, especially in the light of the two other incidents. The respondent is happy to attend industrial relations disputes at the Workplace Relations Commission.

The delays included getting an investigator and getting him up and running. It was done speedily before that. The HR Director did not accept that the letter of 18th August looked like the start of the investigation. The investigator was contacted after the July 2016 meeting and accepted the commission in February 2017. He commented that trust in care issues take longer because of the serious nature of the complaints. He had dealt with investigations himself. In this case, he had been involved at the early stage, so referred the issue externally. The final investigation conclusion was that there was an abusive interaction by omission. The complainant never indicated that she was so aggrieved she had to resign.

In questioning, HR Director said that the complainant was suspended as they could not take a chance. It was put to the HR Director that the client had limped off the bus before her time in the shower room; he replied that the client cannot walk or stand unaided. It was put to the HR Director that the incident occurred on the 3rd February 2016 and the investigation concluded in August 2017 and that a guillotine was held over the complainant’s career for so long; he replied that the complainant should have cooperated and did not participate in the investigation.

In concluding comments, the respondent submitted that the grievance procedure was available to the complainant and her process updates did not constitute a grievance. There were managers in the respondent who were new and could have engaged with the complainant. She could have also engaged with the CEO, with whom she had dealt with previously, as well as the Chair and the board. This course was set out in her contract. The employer was entitled to have an opportunity to address the complainant’s issues. In her letter of resignation, the complainant refers to her “pleasure” of working with the respondent. The complainant was out in early 2016, delaying the screening process. There would have been further processes following the investigation report, had she remained an employee.

The complainant’s employment with the respondent commenced on the 4th May 2004. She was paid €4,648 per month. Her contracted position was that of PE Teacher/Social Care Worker, although she worked in the latter role at the time of the dismissal. As set out in the preliminary decision, the complainant resigned by letter of the 5th April 2017. I have found that the date of dismissal was the 17th April 2017.

2015 grievance / service

The respondent provides residential care and education services to people with disabilities. The complainant worked as a PE teacher in the school and was also a social care worker. There was contested evidence regarding when the care and education services were separated, although it was agreed that the complainant worked exclusively in the respite centre from May 2015. Prior to this, the complainant lodged a grievance arising from a difficult working relationship with a colleague. In evidence, the complainant did not find this grievance process useful as she was not assigned an alternative PE role in the school. This was in reply to the respondent submission that she should have referred a grievance in respect of the 2017 Trust in Care process. She referred to being shouted at by the HR Director, an allegation he strenuously denied. The respondent referred to there being “redundancies” of HSE-funded posts in the school. The complainant was re-assigned to the respite centre, somewhere she had worked before. There is no formal documentation referring to the complainant as having been made redundant in 2015, i.e. her employment ending. I find that the complainant’s employment was continuous between 2004 and 2017.

Trust in care

This case arises from the events of the 3rd February 2016, subsequently dealt with by the respondent under the Trust in Care policy. This provides for preliminary screening of a complaint to determine whether an abusive interaction could have occurred. A formal investigation does not occur where the preliminary screening determines that no abusive interaction could have occurred. The policy further provides “If it is decided that a formal investigation is warranted, a meeting should be arranged to inform the staff member of the intention to carry out a formal investigation. The staff member should be advised of his/her right to be accompanied at this meeting by a union representative or work colleague. The staff member should be given details of the complaint at the meeting and afforded an opportunity to make an initial response if s/he wishes. S/he should be advised as to what happens next and told not to make contact with the complainant.”

The Trust in Care policy provides that protective measures may be taken to avoid a “patient/client or staff member” being exposed to unacceptable risk. It further states that putting a staff member off duty should be reserved for the most exceptional circumstances. This is a precautionary measure and not a disciplinary sanction.

The section entitled “conducting the investigation” provides that the investigation will be conducted “thoroughly and objectively”. It requires that the investigation team have the expertise to investigate the matter “impartially and expeditiously”. The investigation is to reach preliminary conclusions and any person adversely affected by the conclusions is invited to provide additional information or to challenge any aspect of the evidence. The investigation will then issue final conclusions and recommendations.

Incident of the 3rd February 2016

On the 3rd February 2016, the complainant was caring for a vulnerable client who was taking a shower. It was later ascertained that the client had a swollen knee, subsequently diagnosed as a dislocated patella. The complainant states that there was no incident to report on while the client was in the shower. The client had sat down on the floor and was helped onto a chair. Her feet were red. The complainant states that the client was unsteady on her feet earlier that day.

The respondent gathered statements from the complainant and other staff about what happened before, during and after the client’s shower. The nurse who was in the adjoining room states that the client was limping on her right leg after the shower and that her feet were red from the shower floor. The nurse states that “all was normal” after this and later the client’s swollen knee was a concern. The nurse also states that “it would normally take 2 people to shower [the client]” but there is no reference to any requirement of having two people to shower the client.

Meetings with the complainant and others

The Trust in Care policy is clear what should happen when a concern of possible abuse is raised. A preliminary screening takes place to see if the allegation could not have occurred. If there is a possibility the incident occurred, then the matter proceeds to investigation. A great deal of documentation was generated in this process, including meeting minutes, statements and correspondence exchanged between the complainant and the HR Director. The respondent refers to 23 statements gathered in the preliminary screening process. There were meetings in February and March 2016 with various witnesses, including the complainant. She attended further meetings on the 18th May, the 8th June and the 4th July, referred to as “investigation meetings” in their respective minutes.

Correspondence

The respondent letter of the 4th July 2016 states “I am writing to inform you that the organisation has undertaken a preliminary screening process under the Trust in Care policy. [The respondent] has concerns with regards to the safety of the Children entrusted to your care. This is in accordance with the Protection and Safeguarding Policy and Trust in Care policy, which is the procedure management must follow for managing our concerns… The purpose of the fact finding process is to establish the facts pertaining to the concerns expressed… A full dossier will be forwarded to you in due course. I will expect a written response to the issues raised in the dossier within ten working days from receipt of the said dossier. Thereafter we will consider your responses and arrange a meeting to discuss same.”

The complainant was sent a dossier on the 18th August 2016, to which she made a detailed eight-page reply on the 19th September 2016. The HR Director sent a detailed reply on the 12th October 2016. This refers to HR Director’s comment regarding the injury to the client “All information is lending itself to the time in the [respite centre] when [the client] was in [the complainant’s] care whilst she was showering her.”

The respondent letter of the 5th December 2016 refers to the letter of the 12th October as the “undertaken” preliminary screening process. It states that it is in the process of handing the file over to an external investigator. The letter of the 10th February 2017 states that the “external investigator” has been appointed (although the external investigator refers in the draft report to being “commissioned in May 2017 to conduct the investigation”).

The respondent’s letters of the 10th and 15th February and the 3rd April refer to the appointment of the external investigator, “who would be in touch shortly”. The next correspondence is the HR Director’s invitation of the 2nd May to meet the external investigator; the complainant did not participate in this process. In fact, she was only supplied with the August 2017 draft report on the eve of the adjudication.

Preliminary screening v investigation

While other issues were referred to in passing during the above process, the central issue was the incident of the 3rd February 2016. According to the respondent’s evidence, the preliminary screening process ended on the 12th October 2016. It could be said that the investigation commenced before this. The meeting minutes from May onwards refer to “investigation”. The above correspondence refers to “fact finding”, which, according to the policy, is a task of the investigation. The correspondence also refers to the HR Director’s tentative finding that the evidence “lended” to the injury occurring while the client was in the complainant’s care.

The complainant strongly disputed this tentative finding in her replies to the HR Director, for example in her letters of the 19th September 2016 and 6th January and the 20th March 2017. The complainant again raises the respondent’s failure to explain this tentative finding in her letter of the 11th April 2017.

Timeline

The timeline in this case suggests a protracted and delayed process. The Trust in Care policy refers to this being completed expeditiously. It was submitted by the complainant that this amounted to a guillotine held over her career. This process stemmed from the 3rd February 2016 and according to the respondent’s evidence, culminated in the conclusion of the preliminary process in October 2016. According to the respondent, this was referred to investigation in February 2017, a year after the incident. The formal investigation commenced in May 2017, with the first interview taking place a month later. The draft report was completed in August 2017.

Test for constructive dismissal

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 separate 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.” It is important to note that the contract test requires repudiation of contract and not merely breach of contract.

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.”

In Western Excavating (ECC) Ltd v Sharp, the ‘reasonableness test’ provides that the conduct of the employer should be assessed 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.” As opened by the respondent, the reasonableness test requires the complainant to have “substantially utilised the grievance procedure to attempt to remedy her complaints” [Conway v Ulster Bank UD474/1981]. The reasonableness test requires an assessment of the employer’s conduct and the extent to which the complainant sought to utilise procedures and raise her concerns.

Assessment of the evidence

In assessing whether the complainant has met either test of constructive dismissal, I note that the respondent’s detailed policy to address Trust in Care issues. Given that the client sustained an injury in or around the 3rd February 2016 and she had been in the shower under the complainant’s sole care on this day, it was inevitable that the low threshold set out in the preliminary screening process would be met. While the complainant gave a clear and cogent account of what happened and said that there was “no incident to report”, it is difficult to see how the respondent could conclude that there was no basis for concern. There was no staff member with the client other than the complainant at the time of the shower. There is high risk in a shower room that someone might fall.

There appeared to be some criticism in the formal investigation report of the complainant being alone with the client and her not wearing pool shows; I see no requirement in any document for two staff members to be present when the client was taking a shower or that she wear pool shoes. I note the “serious concern also that the [complainant] did not follow the intimate care plan and standard operating procedures associated with the [client].” No such documentation was opened at the adjudication.

As noted above, it is open to interpretation that the investigation commenced in May 2016 as the word “investigation” was used in the meeting minutes. The respondent required the complainant attend meetings with union representation and required her answer the detailed dossier. As noted, the respondent made a tentative finding against the complainant, which she hotly disputed. According to the Trust in Care policy, these are all steps for the second phase, the investigation. The later correspondence states that this was still the preliminary screening process. Taking October 2016 as the end of the preliminary screening process, it is clear that this process went beyond what was required for preliminary screening. This substantially added to the time taken to conduct the process and inevitably strayed on the “impartiality” of the investigation, i.e. because a tentative finding was made.

The complainant was under the cloud of the Trust in Care process from early February 2016, through her suspension in July 2016 to her resignation in April 2017. There was further delay between the end of the preliminary process (October 2016), the appointment of the formal investigator (February 2017) and the date of his first interview (June 2017). Central to the employment relationship is the employee being able to go to work to do her job. While the complainant was suspended on basic pay, she was denied the expeditious completion of the investigation and her return to work.

A common thread in the correspondence is that the complainant clearly articulated her unhappiness with the delay in the process. She responded in detail to each point and strongly challenged the tentative finding made by the HR Director. This is set out in the letters of 19th September 2016 and 6th January, 20th March and the 11th April 2017. In her letter of the 11th April 2017, the complainant acknowledges receipt of the respondent’s letter of the 3rd April but states “I am disappointed to see that the questions asked in my previous correspondence, dated 6 January 2017 have not been answered. Your letter dated the 3 April 2017 and that of the 15 February 2017 are very similar in content, and for that I am at a standstill receiving no further information since your correspondence on 5 December 2016, apart from knowing the name of the investigator, [name]. I find this unsatisfactory, confusing and demeaning due to the lengthy period that has passed and the alleged issue to hand.” This letter further confirms the complainant’s resignation “after a great deal of thought and consideration”. This correspondence reflected the position clearly articulated by the complainant at the meetings of the 2nd March, 18th May, 8th June and the 4th July. The minutes of the 8th June meeting are particularly striking in setting out the terse exchanges between the complainant and the HR Director.

These are the factors to be considered in assessing the complainant’s non-utilisation of the grievance process and her letter of resignation. The respondent submits that the failure to utilise internal procedures is a fatal flaw to the claim, in particular as she had availed of the grievance procedure in 2015. I accept that the contract of employment refers to a grievance procedure. The complainant’s issue was with the delay and finding made during the Trust in Care process. She made her concerns and grievances known to the respondent, as set out in correspondence and meeting minutes. It is entirely unclear that the outcome of a grievance process could amend the course of a Trust in Care process; the grievance policy refers to issues such as rosters, overtime and access to training. I note that the complainant was in the midst of a protracted Trust in Care process; it is unreasonable to require her to layer on a grievance process on top of this.

The respondent submits that the complainant does not indicate any dissatisfaction with her employment in the letter of resignation. She wished to “thank [the respondent] for the lovely years spent working with staff and children. It was a pleasure to be a part of it.” This must, however, be seen in the context of the totality of her correspondence and meetings with the respondent. In evidence, the complainant said that she had exhausted the system with her letters. The complainant was keenly unhappy with the course of the process, in particular with the tentative finding made against her. She repeatedly asked for the basis of this tentative finding; the respondent replied by referring to the generality of the documentation.

For these reasons, I find that the delay and actions of the respondent amounted to a repudiation of the complainant’s contract of employment. The respondent repudiated the contract of employment in not complying with its Trust in Care policy and breaching the term of mutual trust and confidence. First, there was the very substantial delay in completing the preliminary screening process. Second, the preliminary screening process went beyond its terms, leading to a tentative finding against the complainant. Third, there were multiple meetings and correspondence asking for the complainant’s input, something beyond the scope of the preliminary process. Fourth, the complainant challenged the tentative finding made against her and this was never adequately replied to. Fifth, the matter was not immediately referred to investigation when the complainant was suspended (July 2016) or at the latest, October 2016. Sixth, the complainant was unable to fulfil the central part of the wage/work bargain, i.e. to attend work. In conclusion, the extended exclusion of the complainant from the workplace in the context of the protracted Trust in Care process amounts to a repudiation of the contract of employment, in particular of the term of mutual trust and confidence. The claim of constructive dismissal is well founded.

In assessing redress, I note the complainant’s evidence that she started new employment on the 27th April 2017. She said she was paid €8,000 less in this role and it involved a longer commute. She sought work in and around the time she resigned from her employment. Taking these factors into account, I award redress of €9,000.

CA-00014972-001

In respect of the preliminary matter, I decide that the date of dismissal was the 17th April 2017 and the complaint was referred to the Workplace Relations Commission within the six-month limitation period. For the reasons set out above, I find that the complaint made pursuant to the Unfair Dismissals Act is well founded and the respondent shall pay to the complainant redress of €9,000.

Unfair Dismissals Act / constructive dismissal

Repudiation of contract /mutual trust and confidence

Trust in Care process