Complainant

Respondent

Anonymised Parties

A Care Assistant

A Residential Healthcare Provider

Representatives

Des Courtney, SIPTU

Patrick Troy, 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-00015133-001

19/10/2017

The respondent is a company limited by guarantee and provides education, day-care, residential and respite services for children and adults with disabilities. Having worked with the company from 2012 on a Job Bridge programme, the complainant was appointed to a permanent position as a care assistant on March 21st 2016. She was recruited on point 4 of the care assistant grade and in 2017, she earned €25,679.

Before considering the positions of both sides on this matter, I wish to set out a summary of the events which led up to the complainant resigning on September 28th 2017.

May 12th 2016

In accordance with the respondent’s Safeguarding policy, the complainant submitted a report about the conduct of her manager, a clinical nurse manager (CNM). This policy sets out the procedures for the reporting of a suspicion of abuse or mistreatment of a service-user. The complainant’s manager was suspended pending the outcome of an investigation into her conduct.  

Beginning of June 2016

At a meeting with staff in the unit where the complainant worked, they were informed that a complaint had been made about the CNM. The staff were not told who made the complaint, but the complainant felt that from then on, she was “subjected to prolonged periods of silence from her colleagues.” Because of her sense of isolation, she requested a transfer to another unit.

August – December 2016

The complainant had meetings with local management at which she expressed concerns about her perception that she was being treated differently by her colleagues since she submitted the safeguarding report.

September 2016

As part of the investigation into the report about the conduct of her manager, the complainant was interviewed by the investigating team. At the meeting, she revealed her concerns about how she felt she was being treated since she submitted her report.

October 3rd 2016

The complainant was transferred to another unit on the same campus and she said that she was very happy there and got on well with the clients and particularly with her main service-user and his family.

December 19th 2016

The complainant and her SIPTU representative met with the operations manager and she expressed her concerns that complaints had been made about her. On December 22nd, the operations manager wrote to the complainant to confirm that no complaint had been submitted and she was advised that the employee assistance programme was available for her to discuss her concerns.

July 2017

The complainant was informed about the outcome of the investigation into her report about her manager in May 2016. The CNM was exonerated by the investigation team and was about to return to the place where she worked before her suspension. The complainant was informed that it would not be appropriate for her to report to this manager again and the manager said that she would not work with her. As a result, the complainant was informed that she was being transferred to a house in the community, about five minutes’ drive from her present location.  

July 20th 2017

The complainant invoked the grievance procedure and objected to the decision to transfer her from the campus to a community house. At a meeting with the Head of Human Resources, the complainant’s SIPTU representative outlined the complainant’s concerns about the transfer.   The complainant was concerned that one outcome of the transfer might be the effect it would have on other employees who were contemplating submitting a report under the Safeguarding policy, who might be afraid of reprisals and intimidation.

August 4th 2017

The complainant was on annual leave, but she attended a meeting with the director of nursing and an operations manager. She was informed that she was correct to submit the safeguarding report, and, while she had been doing “a great job” in the unit she transferred to in October 2016, the decision to transfer her to the community house was confirmed. The complainant was going on holidays for two weeks and she was to get her roster for the new unit on August 14th. At the hearing into her complaint, she said that her concerns about this move were ignored and she did not return to work.  

August 24th 2017

The complainant submitted a complaint alleging that she had been “bullied, harassed, threatened and victimised by management” following her safeguarding report in May 2016. She complained specifically about bullying and harassment by the previous director of nursing (who resigned in December 2016) and about bullying, harassment and defamation of her character by a CNM.

September 8th 2017

The complainant’s union representative wrote to the director of human resources to ask her to reconsider the decision to transfer the complainant to a house in the community.   The director didn’t respond because the matter was being dealt with locally.

September 12th 2017

The human resources officer to whom the complainant sent her complaint of bullying wrote to her to suggest a meeting to discuss the issues she raised. A meeting was scheduled for September 18th, but the complainant did not attend due to illness. She asked the HR department to write to her with questions.   The HR officer sent the complainant a copy of the Dignity at Work policy and asked her how she would like to proceed.

September 21st 2017

The complainant submitted a medical certificate in which her doctor said she was suffering from work-related stress. Following a consultation with the company’s occupational health consultant, he agreed with the doctor’s diagnosis.

September 25th 2017

The complainant sent an e mail to the HR officer and said that she would like to proceed to have her complaints investigated formally.

September 28th 2017

While she was on sick leave, the complainant gave two weeks’ notice of her intention to resign and she made further allegations against her employer. In her letter, she said that she was resigning because “my principles and morals will not let me work in an organisation that covers up abuse of vulnerable people and an organisation that bullies me in order to silence my concerns for vulnerable people at risk.”

October 5th 2017

The HR officer wrote to the complainant requesting a meeting to investigate her formal complaint and to discuss the allegations in her letter of resignation. The complainant declined the invitation saying, “I feel the way I have been bullied, victimised, and penalised for making a safeguarding report …is irreparable and I don’t see what this meeting will achieve.” Two weeks later, she sent an e mail saying, “Although I have handed in my resignation, I trust that you are still going ahead with formal investigation…”

December 6th 2017

Following a preliminary screening of her complaint, the HR officer wrote to the complainant to inform her that the “details which you have submitted do not indicate repeated inappropriate behaviour or harassment which is defined as any form of unwanted conduct related to any of the discriminatory grounds covered by the Employment Equality Acts 1998 – 2015.”  

Background to the Complaint’s Decision to Resign

Following her report about the conduct of her manager in May 2016, the complainant’s view is that her former employer failed in their duty of care towards her. No terms of reference were agreed for this investigation and the complainant said that her confidence was breached by the management informing her colleagues that a report was submitted. She alleges that she was subjected to “prolonged periods of silence” from her colleagues and, as a result, forced to look for a transfer to an alternative unit. In evidence, the representatives of the respondent said that, at this meeting, the employees were informed that the CNM had been suspended and that an investigation was under way into her conduct.   They were not informed about who made the allegations.

The complainant argues that her report was not taken seriously, she was not protected from the risk of reprisals or intimidation and she was not informed of the outcome of the investigation.

For the complainant, Mr Courtney said that this silent treatment, “for days or even weeks at a time” is a form of bullying and is identified as such in the respondent’s Dignity at Work policy. In his submission to the hearing, Mr Courtney was critical of the fact that, having made a safeguarding report in May 2016, the complainant was informed in July 2017 of her manager’s imminent return, although a report had apparently been finalised in November 2016. Despite making a report against her manager in good faith, the management proposed that complainant be transferred from the unit in which she was working happily.

It is the complainant’s case that the respondent failed to deal adequately with her grievance about her proposed transfer to a community house in August 2017. When she made a formal complaint against two managers, she said it took seven weeks to get a response.

For the complainant, Mr Courtney said that the management ignored their responsibilities under the Safeguarding and the Dignity at Work policies and the complainant’s safety, health and welfare at work was jeopardised, with the result that she suffered from serious work-related stress. Her health deteriorated, entirely, in her view, because of the unreasonable behaviour of her employer. For this reason, she decided that her continuing in employment with the respondent was no longer possible.

Legal Precedents

In his submission, Mr Courtney referred to the Employment Appeals Tribunal (EAT) case of Liz Allen v Independent Newspapers, UD641/2000, where the Tribunal found in Ms Allen’s favour and was satisfied that the complainant “could have no confidence in the respondent to either properly or effectively address her grievances” and that she “did not act unreasonably in taking into consideration the likely effect on her health and well-being were she to remain in the work environment.”

Mr Courtney also cited the Labour Court case of Trinity Biotech Manufacturing Limited and A Worker, AD 046, where the Court found in favour of the claimant on the basis that there were “no efforts made to deal with difficulties raised by the employee during the period of her employment…”

It is the union’s case that the complainant’s circumstances are reflected in these precedents and that, in her decision to resign on September 28th 2017, she was unfairly dismissed.

Response to the Complainant’s Decision to Resign

In July 2017, when she was informed about the outcome of her report under the organisation’s Safeguarding policy, the complainant did not return to work. She was absent first on annual leave and then on sick leave.   It is the respondent’s case that the complainant was upset about the report’s findings that there was no basis for the allegations she made in her May 2016 report.

The subject of this report was the complainant’s manager who was suspended for almost one year, pending the outcome of an investigation into her conduct. In July 2017, she was due to return to her job in the unit where she worked previously. This would have involved her managing the complainant and working with a team of five or six staff. She was reluctant to work with the complainant and the management of the organisation decided that it would lead to a strained atmosphere if both people had to work together. A decision was made to transfer the complainant to a separate unit in the community. The respondent’s case is that, by being transferred, the complainant was not mistreated or victimised. The community unit was close to where she was working and there were no changes to her pay or her conditions of employment.

When she was instructed to transfer to the community house, the complainant went on sick leave and initiated grievances against two members of management, alleging that she was bullied and harassed because of making the safeguarding allegation in May 2016. The substance of these complaints related to the circumstances of 10 months previously.   The respondent argues that the complainant’s decision to initiate this grievance was related to the outcome of the investigation into her manager’s conduct. The respondent’s position is that if these grievances were serious, the complainant would have pursued a grievance much earlier.

For the respondent, Mr Troy rejected the notion that the complainant had no option but to resign.   On September 18th 2017, she declined an invitation to a meeting to discuss her grievances, which she wrote to the HR officer about on August 24th. Three days before she confirmed her resignation, the complainant wrote to say that she wished to pursue a formal investigation into her grievances.

In any event, the respondent proceeded to investigate these new grievances and submits that the complainant was not entitled to resign during the process and claim that she was constructively dismissed. No material fact had changed in relation to the complainant’s employment from August 24th 2017 when she submitted her grievances until September 28th, when she resigned. Following her resignation, she refused to meet to have her grievance considered and she said, “my reason for leaving stated in my resignation letter still stands and will not change.”

The respondent submits that they wanted the complainant to change her mind, even to have her allegations against her colleagues processed. However, she decided to dis-engage and she voluntarily left her employment. The respondent’s case is that the complainant was not constructively dismissed and that she resigned while her grievances were being dealt with. They claim that her actions are perverse and symptomatic of her “rather arbitrary behaviour.”

Legal Precedents

In his submission, Mr Troy referred to the case law that shows that, in circumstances of constructive dismissal, the burden of proof is on an employee to show that the actions of their employer left them with no alternative but to resign. The precedents show that it is expected that a complainant will have exhausted internal grievance procedures before resigning. Mr Troy referred to the EAT case of McCormack v Dunnes Stores, UD 1421/2008, where the chairman summarised this requirement:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers.”

Again, emphasising the requirement to utilise procedures, in the EAT case of Conway v Ulster Bank, UD474/1981, the chairman concluded that,

“The duty is an imperative almost always in employee resignations. Where procedures exist, they must be followed.”

The same findings were adduced in the cases of Travers v MBNA, UD720/2006, where, similar to the complaint under consideration here, the complaint submitted a grievance but resigned despite her employer’s best efforts to have a meeting with her.

Mr Troy also referred to the reasonableness test and the contractual test, one or both of which must be satisfied to meet a claim of constructive dismissal.

In the Labour Court case of Caci Non-Life Limited v Daniela Paone [2017] UDD 750, the chairman, Mr Haugh stated:

“It is well-settled law that a complainant who is advancing a claim of constructive dismissal under the Act must demonstrate that his or her employer has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for that person to remain in their employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective.”

For the respondent, Mr Troy submitted that its actions in dealing with the complainant were those of a reasonable employer. The complainant’s safeguarding allegations were investigated. When the complainant raised concerns during this process, she was reassured that no one had complained about her actions.   She was directed to the employee assistance programme and she was advised to bring her concerns to the attention of the HR department. She did not raise any concerns until August 2017, when the safeguarding investigation was over. The respondent’s case is that the decision to transfer the complainant to a new unit was sensible and in the interests of all the staff concerned. In July and August 2017, the complainant and her union representative met with management to discuss the transfer.   When the complainant made further allegations against staff, an investigation was initiated, and the respondent tried to meet the complainant to deal with these issues. The respondent’s case is that these actions are not those of an unreasonable employer or an employer intent on committing a fundamental breach of contract.

Mr Troy submitted that the contract test is well set out in the case of Western Excavating (ECC) Limited v Sharp [1978] (IRLR 332).   Here, Lord Denning concluded;

“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 discharged from any further performance.”

The respondent’s case is that it honoured the complainant’s contract of employment throughout her tenure. The management tried to deal with the issues she raised in August and September 2017, but the complainant did not participate in the investigation.

It is the respondent’s case that the complainant has not met the test of reasonableness or the contract test which show that the conduct of her employer was so significant that she had to resign.   Their case is that the grievances submitted by the complainant were under investigation, and before taking a decision to terminate her employment, it was incumbent on her to allow the investigation of her complaints to be concluded.

Constructive Dismissal

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

As a complaint of constructive dismissal, the burden of proof rests with the complainant to show that her decision to leave his job was reasonable in the circumstances that prevailed at the time.

The issue for decision in this case is, taking into consideration the conduct of the respondent in relation to this former employee, can I accept as credible her claim as set out in her complaint form that, “I was left with no alternative but to leave my job.”

The Effect of Submitting a Safeguarding Allegation

In May 2016, the complainant submitted a report of allegations into the conduct of her manager.   For any employee in this circumstance, it is normal to be concerned about how colleagues will react. The complainant felt that she was ostracised and viewed with a degree of contempt. She had at least two meetings with her managers to express her concerns and, in the end, she asked to be transferred to a different unit on the same campus. It took several weeks for a transfer to be arranged, but, from October 2016, it seems that the complainant worked well in her new unit and she established a positive relationship with one of the service-users and his family, who were very appreciative of the care she provided to their relative.

From the evidence presented at the hearing of this complaint, it is apparent that things changed in July 2017 when the investigation into the complainant’s allegations under the safeguarding policy was concluded and there were no adverse findings against the CNM who was the subject of the report. The respondent’s managers decided that it would be in the interests of the complainant and her former manager if they did not have to work together again. The complainant was informed that she was to transfer to another unit in the community. She was unhappy about this and felt that she was victimised for making the allegations in the first instance.

Despite the representations of her union, the decision to transfer the complainant to another unit did not change. In August 2017, she submitted a complaint that she had been bullied and harassed.   One of incidents she complained about occurred in October 2016 and the other related to a person who resigned in December 2016. Regardless of the time lapse between the incidents and the submission of the formal complaint, the respondent’s HR officer initiated an investigation and asked the complainant to participate. On September 25th 2017, she requested draft terms of reference for the investigation, but three days later, on September 28th, she resigned. Following her resignation, she was asked to participate in the investigation into her complaints, but she declined to do so.

The Reasonableness Test and the Contract Test

The issue for consideration here is if the conduct of the employer was such that it was reasonable for the complainant to resign and to claim that she has been constructively dismissed. Many years of case law on constructive dismissal point to the requirement for the complainant to show that the conduct of the employer must fail at least one of two tests, the reasonableness test and the contract test and the respondent’s submission explored both concepts. I find myself I agreement with the respondent’s position on these tests for the following reasons:

In May 2016, the respondent accepted the complainant’s allegations about her manager in good faith. The CNM who was the subject of the allegations was suspended and an investigation was carried out by one internal investigator and one external person. They did not uphold the complainant’s allegations and the CNM was returned to duty.

When she expressed her concerns about her feelings of isolation, the respondent’s managers affirmed the complainant in her decision to submit a report about her manager and told her that she had done the right thing. They advised her to get support from the employee assistance programme.   They also agreed, albeit after some delay, that she could transfer to another unit on the same campus.

When her manager was exonerated and due to return to work, it was not unreasonable for the complainant to be transferred to a unit off the campus in a nearby community house.   It is my view that, if she had not been moved, the difficulties of working with her former manager would have created an unacceptable level of stress for both of them. At a meeting on August 4th 2017, when this decision was communicated to her, the managers again reiterated that she had done the right thing submitting a report, and she was informed that she was a great asset to the team where she worked since October 2016.

On August 24th 2017, when the complainant submitted a grievance about the conduct of two colleagues, this was also taken seriously by the respondent. The complainant was upset at the tardiness of the response which was due to the HR officer being off work due to a car accident. On September 12th, this person contacted the complainant by telephone and a meeting was arranged for the following Monday. The complainant didn’t attend as she was ill.

Following her resignation on September 28th, the respondent proceeded to investigate the complainant’s latest allegations and invited her to attend a meeting to state her case. She did not participate and the investigation concluded that the information that she submitted in relation to her allegations of bullying and harassment was such that it did not indicate evidence of inappropriate behaviour.

Having considered this matter, I find no evidence that the employer acted so unreasonably that the complainant had to resign.

In respect of the contract test, the complainant’s contract of employment was submitted in evidence and shows that the location of employment is the place that the complainant commenced working with the organisation “or any of its locations attached to the region.” I find that there is no breach of contract associated with the respondent’s decision to move the complainant to a location less than five minutes’ drive from the place where she was working. It is my view that this decision would have resulted in a less contentious working environment for the complainant and was in her best interest.

Failure to Use the Grievance Procedure

It is now settled law that an employee who claims to have been constructively dismissed must show that they made efforts to resolve the concerns that give rise to their resignation by using the internal grievance procedures. The complaints submitted by the complainant about her colleagues in August 2017 relate to incidents that occurred before December 2016. It seems to me that there was a connection between these allegations and the findings in July 2017 of the safeguarding report and the proposal to transfer the complainant to a house in the community.   Regardless of the delay submitting her grievance, the respondent proceeded to investigate the complaints.

I must be guided by the authority of the Employment Appeals Tribunal and the Labour Court in respect of this matter. The findings of the cases presented by the respondent, of McCormack v Dunnes Stores, Conway v Ulster Bank and Travers v MBNA demonstrate that where procedures exist, they must be followed and, failure to exhaust the procedures means that a complaint of constructive dismissal will not stand up.

Conclusion

I have some appreciation of the complainant’s predicament in the weeks leading to her resignation.   She made allegations about her manager which were not upheld, and the effect of this must have been upsetting and even humiliating. Her managers reassured her that she was not wrong to submit a report about her concerns and I am absolutely satisfied that their decision to transfer her to a new location was not retaliatory. It is my view that a transfer would have been easier for her than returning to work with her former manager. I also appreciate that the optics of this transfer were difficult for the complainant, as it may have appeared that she was being punished for making the report in the first instance.

In the end, the complainant resigned, and, considering all that happened, many people in the same circumstances would have done likewise. However, it is my view that the complainant’s decision to resign cannot be attributed to the conduct of her employer.

I find that the complainant has not met the burden of proof which demonstrates that her employer behaved so unreasonably that she had to resign from her job. As a result of this finding, I have decided that this complaint under the Unfair Dismissals Act is not well founded

Constructive dismissal