Complainant

Respondent

Anonymised Parties

A clerical officer

A health care provider

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-00019385-001

24/05/2018

The Complainant commenced employment on 29/09/2011 and resigned on 15/02/2018.

This complaint was received by the Workplace Relations Commission on 24/05/2018.

Employment History.

The Complainant graduated with an honour’s degree in Economics and Social History and over the years in addition to pursuing post – graduate studies she has had a number of responsible operational and management positions in the commercial world.

In 2010 the Complainant was recruited by the Respondent as a Community Welfare Officer (Grade 6) on the basis of a six-month contract. It is acknowledged that the role of CWO is a demanding position which required judgement, decision making skills; an awareness of client needs and discretion. It acknowledged that the Complainant performed well in her role and her employment was extended beyond the six-month period initially envisaged. Her understanding was that following the (various) extensions to her employment she would be transferred to the Department of Social Protection. The CWO team attended an induction meeting with her new proposed management for the transfer. Despite the various representations made to her the promised transfer never materialised.

In Autumn 2011 the extended contract as a CWO came to an end. The Complainant was told that she could accept an unemployment status or accept the arranged transfer as a Clerical Officer (Grade 3) to the department (who are now the Respondent).

Simply stated the Complainant was put in an impossible position whereby she was effectively presented with very stark options: either be summarily dismissed from a job she had enjoyed and had performed well in or transfer to an entry level post at a greatly reduced salary and inferior conditions. This whole process was conducted in a manner which disclosed major breaches of employment law specifically the Protection of Employees (Fixed Term Work) Act.

The Complainant as a result found herself in a position whereby she was compelled to transfer to an entry level post at a greatly reduced salary and inferior conditions to maintain employment.

Email dated 6th August 2014.

In an email of 06/08/2014 the Complainant sets out in some detail the situation she was suffering in which included:

1.       That she was suffering from a respiratory condition which included a severe allergic condition and was greatly acerbated by the conditions in the Respondent’s offices. This was backed up with the Occupational Therapist ‘s Report at the time.

2.       Following her return to work after illness (summer 2012) she was subjected to continuous jeers and verbal abuse by her line manager.

3.       That at the time of her collapse she had alerted her line manager that she was not feeling well and when she began to exhibit signs of a stroke she was accused of being intoxicated.

4.       When she collapsed the line manager would not call for an ambulance.

The final section of the Complainant’s email states as follows:

“Please I am requesting a transfer out of this department and have expressed to xxxxxxx (the most senior manager) that I want out away from (name redacted) and away from (line manager name redacted) But as xxxxxxx (name redacted) what’s a little dust? And as for the issues I emailed him he stated that he never knew that I had been taken ill that day.

What I want to know is did anyone in charge know I was fighting for my life on that day? I have now to pass this person as if nothing had happened. So, I reiterate my grievances:

Line Manager (name redacted) and the slanderous way he behaved towards me and most of all the lack of responsibility and duty of care that was not available to me on the day I fell ill in 2012. No first aiders came to help me. There was even an argument about calling an ambulance.

My ongoing health problems now that I am back to work and how I can move forward in this working environment.

I am writing to start a grievance as I feel very isolated and still don’t feel well working in this environment.”

Grievance Procedure.

A stage 1 Grievance meeting was held on 14th August 2014. The purpose of this meeting was to hold an investigation to determine:

1.       Whether the complaint falls within the definition of bullying, harassment or sexual harassment as defined in the Dignity at Work Policy.

2.       Whether any of the complaints made are upheld as the offending action amounted to inappropriate behaviour, bullying, harassment or sexual harassment.

3.       Where appropriate, make recommendations (excluding disciplinary sanction).

A stage 2 Grievance meeting was held on 30th April 2015. On foot of that meeting the Chair recommended the following:

1.       That a written apology from the Respondent Department should be forthcoming in respect of the following:

a.       Lack of responsibility and Duty of Care of the supervisor.

b.       Failure of supervisor to acknowledge illness and immediately call for an ambulance.

c.       Supervisor openly suggesting in an open-plan area that the Complainants illness was related to alcohol consumption.

d.       Any upset caused by phone calls made by management during sick leave, in particular the one made to the Complainant’s father.

2.       That the Respondent will facilitate a transfer outside the home area to any available position within the group of interest and deemed suitable to the Complainant.

3.       That the Respondent HR Department will apply all increments due to the Complainant by the end of June 2015 and this to include retrospective payments that were deferred.

4.       That the Respondent HR Department will clarify and administer all entitlement of Permanency, Annual Leave and Public Holiday entitlements with a target date of 12th June 2015.

A stage 3 Grievance Meetings were held on 20th July 2015 and 7th August 2015.

The following recommendations were made as an outcome to the stage 3 Grievance Meeting:

1.       The Complainant accepts that points 3 and 4 from stage 2 are in train.

2.       It was noted that a potential transfer for the Complainant had been identified in Clonskeagh but for personal reasons was rejected by the Complainant. It was also noted that that there had been competitions for Grade IV and V posts within the Respondent Department since the Complainant had commenced her grievance.

3.       The report of stage 3 grievance recommended that the Complainant should raise any concerns about her current role with her line manager.

4.       The report from the stage 3 grievance will be sent to local HR who should ensure that the appropriate senior management are made aware of the content / recommendations and in particular to the need to implement the recommendations contained in the report of the stage 2 hearing while having regard to the confidential nature of the grievance procedure.

Letter dated 6th October 2015.

From the Respondent Department HR Manager.

The final paragraph of this letter reads:

“I hope that this clarification brings closure to the matters and that we can now work together to move forward as set out above and you can look forward in a positive way to a career in (name redacted)”.

During 2016 the Complainant was offered a transfer to a facility in Wexford. The Complainant formed the view that this was too far, 55 miles and on a single carriage road would take her between 70 and 90 minutes of a drive each way. The Complainant also pointed out that she does not always have the use of a car.

The option of early retirement was put to the Complainant but when she saw the figures offered she realised she could not afford to retire early.

In September 2016 the Complainant’s solicitor wrote to the Chief Executive of the Respondent Group outlining and highlighting the abusive treatment of his client over the past number of years and to put him on notice of the serious consequences, legal and otherwise of the continued management failures, inaction, negligence and incompetence on the part of the Respondent Groups management.

This letter goes onto state that in addressing the correspondence to the Chief Executive it was hoped that costly litigation could be avoided.

This letter then summarises the various stages of the Grievance Procedure and mentions the offer of a transfer to Wexford, and how there was no job description with the offer.

The Complainant wrote to her solicitor in March 2017 and asked for him to continue the complaint against her employer, she was asked to produce a time line of events from 2015 through to 2017.

The Complainant in March 2016 made a request under Freedom of Information – she requested a copy of her personnel file. This was eventually issued to her in October 2016. The Complainant was quite upset when she noted that the incident report form from 2012 was missing. When she requested a copy of this incident report it was issued to her.

On Wednesday 15th March 2017 the Complainant’s solicitor wrote to the Complainant seeking specifics of subsequent acts of bullying and harassment in the past, he found that her instructions were general and not specific enough. It was noted that the solicitor also states, “your employers clearly have no desire to reach a resolution”.

BACKGROUND

The Respondent section supports the delivery of a wide range of primary care services to the general public through over 7000 primary care contractors (i.e. doctors, dentists, pharmacists, optometrists, etc) across a range of community health schemes. These schemes form the infrastructure through which the Irish health system delivers a significant proportion of primary care to the public.

The Respondent section was originally established in 1973 as a reimbursement service for primary care service providers. The Respondent section spends €2.4bn funding the delivery of a wide range of primary care services to 3.4 million persons through more than 7,000 primary care contractors across a range of “demand led” national health schemes and arrangements. In 2011 the assessment and administration of medical cards was centralised in the Respondent section.

The vast majority of primary care services to the general public in Ireland are delivered by over 7,000 primary care contractors through a range of community health schemes.   The Respondent section is responsible, through its reimbursement activities, for making payments to these primary care contractors for the services provided, according to the rules of the relevant schemes. They also reimburse and makes payments to suppliers and pharmaceutical companies under the terms of other schemes.

The Complainant transferred to the Respondent section on 30th September 2011. The Complainant’s temporary fixed term contract with as a Community Welfare Officer (CWO) was due to be terminated along with other CWO Officers who had been engaged for a specific project.   Agreement was reached that this group be offered placements with the Respondent section as temporary Clerical Officers, Grade III prior to their contract expiring. The Complainant was one of the staff who voluntarily signed up and entered into a temporary employment contract as a Grade III clerical officer and commenced employment with the in that role.

LEGAL ARGUMENTS

Dismissal is denied in this case. The Respondent section state that the Complainant resigned from her employment on 16th February 2018. She communicated this by letter to the HR Director Respondent Group. The HR Director’s office passed the Complainant’s letter on to her employer who accepted her resignation.

The Complainant has taken a case under the Unfair Dismissals Act 1977 and in her submission on the WRC Complaint Form has indicated that she is taking a case of constructive dismissal against her former employer, the Respondent section.

Section 1 (b) of the Unfair Dismissals Act 1977 defines constructive dismissal as:

(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.

In circumstances where an employee is claiming constructive dismissal the Courts have placed the burden of proof on the employee to show that the conduct of the employer was so unreasonable that the employee had no choice other than to resign. We contend that no such charge can reasonably be held against the Respondent section.

The late Dr. Mary Redmond has recorded that there are two tests to establish if an employee can successfully claim constructive dismissal: the contract test and the reasonableness test. The Complainant has not stated any explicit breach of contract in her letter of resignation or in her complaint to the WRC, neither do we believe that any such breach exists. In terms of implied terms of her contract and/or the conduct of her employer we believe that the Respondent section never conducted itself in a way that would constitute grounds for constructive dismissal as alleged by the Complainant.

The Complainant resigned without notice to her employer. She has argued that she had no option but to leave yet she has not presented any compelling reason why. Her letter of resignation and complaint to the WRC refers to matters that happened as late as March 2017, nearly one year prior to her resignation.   For a case of constructive dismissal to be successful the Courts have determined that the employee must act within a reasonable time, Lord Justice Denning in Western Excavating (ECC) Ltd v Sharp IRC 221 determined:

“Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract”.

In applying this ruling to the Complainant’s case, it is clear that she has not established grounds for constructive dismissal.

The Complainant has demonstrated that she is aware of the grievance procedure operated by the Respondent section however, she never utilised this procedure to address the issues that she has complained about in her letter of resignation. In Conway v Ulster Bank Ltd UDA 474/198 the EAT considered that the claimant did not act reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints”. By failing to utilise the grievance procedure of her employer, the Complainant has negated her claim for constructive dismissal.

POINTS OF FACT

The Complainant initiated her grievance procedure in August 2014 which culminated in a Stage 3 hearing of her complaint. On 10th August 2015 the findings and recommendations of the Stage 3 Grievance Board were issued. These recommendations were implemented and confirmed as such in HR Manager letter of 6th October 2015.

One of the recommendations of the Stage 3 Grievance report and a significant element in the Complainant’s decision to resign related to a transfer for her out of the Respondent section. The Complainant maintains that the Respondent section failed to honour this element of the report, this is denied by her employer. Her employer initially relocated the Complainant at her request, in another building upon her return from sick leave in 2014 and in addition took the following steps:

·         The Complainant was offered an initial transfer from the Respondent section to a facility in Clonskeagh; the Complainant declined this offer for what she described as personal reasons.

• Shortly after this offer was made, March 2016, the Complainant moved home from the north side of Dublin to Arklow in Co Wicklow.
• On 4th March 2016 the HR Manager informed the Complainant of the process for registering on the National Transfer Panel with an option to specifically request Wicklow as a work location.
• In July of the same year, the HR Manager informed the Complainant of a transfer to Ferrrybank office in Wexford, the Complainant rejected this in August 2016.

The evidence does not support the Complainant’s claim that no efforts were made by her employer to accommodate her request for a transfer. The examples above clearly demonstrate the opposite to be the case. It is also worth referring to recruitment embargo in operation in the public sector during this period; by its nature such an embargo would limit the number of transfers available.

In addition, based on medical advice, accommodation for health reasons were made that resulted in her working week reducing from five days to three days per week. It was also recommended that she was not to work in close proximity to air conditioning units, in an environment that was paper free and with limited exposure to dust. Whilst the Respondent section were able to make these accommodations it naturally limited the number of viable transfer offers that the Complainant was eligible for.

The Complainant made no effort to alleviate her own situation and failed to apply for a number of promotional posts that were advertised across the Respondent Group during the course of her employment.

The Complainant in her letter of resignation complains strongly of the 176km round trip she had to make from her home in Arklow to her employment in Dublin. As unfortunate as this is her employer cannot be responsible for her decision to move from the Dublin which was a round trip of 14km.

The Complainant also has rejected an offer of a transfer to Ferrybank in Wexford. According to the AA Route Planner travelling distance from Arklow to Ferrybank is 116 km round trip, had the Complainant accepted this offer transfer to Ferrybank she would have reduced her daily commute by 60km.   In her response to her manager she introduced a new reason for rejecting Ferrybank, namely that she didn’t “always have access to personal transport”.

The Complainant in her complaint to the WRC states that the grievance board recommended that “the Respondent section would supply a suitable transfer for me to suit my health as I was travelling 100 miles per day from Arklow”. This is not the case, at no stage in the Grievance process was her recommended transfer linked to her health.

The Complainant attended Occupational Therapist for 20 sessions from June 2015 to July 2017.   As the Respondent Group pays for EAP Services to provide counselling support to staff, the Respondent sections management took the view that they were transferring the Complainant’s treatment from the Occupational Therapist to the EAP Service with effect from July 2017. The Complainant has presented this in her letter of resignation as if no alternative support was put in place, this is not the case as she was made fully aware of the counselling support provided for under the employers’ Employee Assistance Programme by DH, PCRS HR Department. This was a reasonable action for PCRS to take in line with its own practice of providing support to staff through the organisations’ EAT scheme.

The Complainant was paid sick pay in line with her contractual entitlement. On a number of occasions HR were notified that she was off work due to illness and that she did not provide medical certifications in line with her contractual requirement as set out in the Managing Attendance policy.   This resulted in a number of instances whereby the Claimant received salary payments for days which were outside the sick pay scheme. Deductions from salary payments were made incrementally for such days over an extended period of time until such time as all the monies owed were repaid.   The Complainant was advised in advance that these deductions would be made and the method by which they would be made. It was open to the Complainant to discuss the timing and amount of deductions to be made.

Throughout her employment with the Respondent, the Complainant has been supported and assisted by management, as evidenced below

·         Shortly after she returned from a prolonged period of absence in 2014 to a new role in a new department.

·         When her manager received a medical report requiring adjustments to her contracted role she was facilitated with same

·         The Complainant was facilitated with a three-day week on the days of her choosing, despite holding a contract of employment for fulltime hours.

·         The Complainant was offered two transfers one to a facility in Clonskeagh, Dublin and one to Ferrybank in Wexford.

·         Arising from her illness the Complainant averaged 27% absenteeism levels during the years 2015 to her resignation. During this time, she was supported with a private Occupational Psychologist, Occupational Health, Employee Assistance Programme and regular support from her Line Managers. A less reasonable employer may well have taken a different view of this level of absenteeism.

CONCLUSION

The Complainant has failed to establish that she had viable grounds to consider her contract of employment repudiated. We have shown that she did not react to the alleged breach of her contract in a timely manner. Neither did she utilise the organisation’s grievance procedure to allow her employer an opportunity to address her concerns. These legal grounds are enough to demonstrate that her claim for constructive dismissal must fail.

The Complainant has complained in her letter of resignation that she never received any formal transfer offer. This is strongly contested by her employer who we have seen above maintains that two formal offers of transfer were made to her and she turned both down. In addition, her employer was made aware of and encouraged her to register with the national transfer panel operated by the Respondent Group.

The Respondent section were fully aware of the Complainant’s medical condition and made numerous changes in her contract of employment to facilitate this. Support was provided to her through her Line Manager, Occupational Health, an Occupational Psychologist and the offer of support from the Employee Assistance Programme. It is hard to reconcile this level of support with an employer whose behaviour is so unreasonable that the Complainant had no alternative but to terminate her employment without notice.

As you will be aware, an employee who claims constructive dismissal is required to demonstrate that they have taken steps to alleviate their loss. We note from the Complainant’s complaint to the WRC she has gained employment as of 19th February 2018 so effectively she has not suffered any loss.

The Complainant sent her letter of resignation to the Respondent Group Director of Human Resources in February 2018.

I have given this complaint much consideration and read the very considerable volume of papers submitted by the Complainant several times.

The Respondent has included case law in their submission and it is to this case law that I must now focus.

Conway v Ulster Bank Ltd – UD474 / 1981.

the EAT considered that the claimant did not act reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints”.

It was pointed out that the Complainant was familiar with the Respondent’s grievance procedure.

Western Excavating (ECC) Ltd v Sharp IRC 221.

For a case of constructive dismissal to be successful the Courts have determined that the employee must act within a reasonable time. Lord Justice Denning found:

“Moreover, he must make up his mind soon after the conduct of which he complains: for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract”.

From March 2017 until February 2018, the point of the resignation, there was a period of relative quietness. The Complainant averaged 27% absenteeism from 2015 until her resignation in 2018, throughout this period the Respondent continued to support her through arranging a private occupational psychologist, occupational health, employee assistance programme and regular support from her line managers. I believe this level of support is more than most employers would consider.

The decision in this complaint sits within the two cases quoted by the Respondent. The Complainant was very much aware of the Grievance Procedure that she had utilised fully some two and a half years previously and failed to utilise in 2018. She cannot now rely on these aged complaints to ground a complaint of constructive dismissal years later.

I must find that this complaint as presented is not well found.

The Complaint as presented is not well found and therefore fails.

Constructive Dismissal.