Complainant

Respondent

Anonymised Parties

Carer

Home Care Provider

Representatives

Kevin Roche BL, Debbie Rooney, Donna Manning, Louis Moore

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997

CA-00032766-001

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00032766-002

05/12/2019

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

CA-00032766-003

05/12/2019

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

CA-00032766-004

05/12/2019

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

CA-00032766-005

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00032766-006

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00032766-007

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00032766-008

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 25 of the Protection of Employees (Temporary Agency Work) Act, 2012

CA-00032766-009

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00032766-010

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00032766-011

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00032766-012

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00032766-013

05/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00032766-014

05/12/2019

CA-00032766-015

05/12/2019

The Complainant was employed a Home Carer from 27th February 2018 to 29th November 2019. She was paid €13.42 per hour and worked part time. She has made complaints that her terms and conditions were changed without written notification, she was not placed on banded hours, was not paid minimum notice and was constructively dismissed.

The Respondent has rejected these claims.

The Claimant stated that her hours of work were reduced without proper notification.

The Respondent stated that the contract of employment provided for maximum hours of work, not minimum. There was no need to advise in writing changes as the contract provides for change, depending on the needs of the business as per rosters provided.

I find that Sec 5 of this Act states “ the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than (a) 1 month after the change takes effect”.

I find that the main contract of employment states” your normal working hours will be up to 39 hours per week Monday to Sunday”.

I find the Schedule 1 of the contract provides “Normal working hours: Variable, as per the roster, including day time and evening shifts as required, and every second weekend”.

I find that the Complainant was not on fixed hours of work. Her hours varied as per her contract based on the roster, depending on the needs of the business.

I find that where there were changes to her hours of work depending on the needs of the business, she was notified by the rosters, but there were not changes to the terms of her contract of employment.

Therefore, I find that there was no requirement to make notifications, so there was no breach of Sec 5 of this Act.

The Complainant stated that she should have been placed on banded hours and paid accordingly.

The Respondent referred to Sec 18 a) subsection 2 of this Act. They stated that the Complainant had not requested to be placed on banded hours.

I find that this section of the Act deals with situations where an employee whose contract of employment requires them to make themselves available to work for the employer.

I find that the Complainant’s contract did not require her to be available for work on an on-call basis. She was given a roster in advance and these were her hours which were based on the needs of the business.

I find that the Complainant was not an on-call employee and not required to be available to be called upon.

I find that is claim is misconceived.

The Complainant stated that her hours of work were reduced, clients were taken from her without any explanation. She believed that she was penalised.

The Respondent stated that her hours of work were based on the needs of the business as per her contract of employment. Any changes in her hours of work had nothing to do with this legislation of being a part timer. She has not raised any entitlement under this Act. She was not penalised because she was a part timer.

I note that the Complainant is alleging that as a result of her hours of work being reduced she was penalised for being a part timer.

I find that she has not named a comparator full time member of staff to compare with.

I find that the Complainant can’t explain why these hours were reduced.

I find that the Respondent has affirmed that any changes to her hours of work were as a result of the needs of the business.

I found no evidence that the changes to her hours of work had anything to do with her status as a part timer.

The Complainant stated that she gave her notice of resigning her position effective from 29th November 2019, via a telephone call. She was asked to confirm it in writing, which she did. She then received a call back to say that she should finish up immediately. She did not get minimum notice.

The Respondent stated that the Complainant contacted them by phone to resign her position. She was asked to confirm this in writing, which she did. They understood that she resigned with immediate effect and so no notice was due to her.

I find that the Complainant gave notice of her decision to resign by a ‘phone call. She was asked to confirm it in writing, which she did.

I find that in the written resignation she stated, ”I wish to let you know that I am giving my notice as from 29th November“.

I find that this is very clear that she gave notice.

I find that she did not state that she was resigning with immediate effect on 29th November.

I find that her contract of employment required her to give “a minimum of one month’s notice” .

I find that the Respondent confirmed to her that her employment ceased with immediate effect.

I find that her contract of employment states, ”The “Employer reserves the right to give pay in lieu of any period of notice, which you are required to give or are entitled to receive”.

Therefore, I find that the Respondent was entitled to make the decision that they did not want the Complainant to work out her notice.

However, the contract of employment requires that they pay the Complainant in lieu of notice.

I find that she was entitled to a minimum of one month’s notice.

I find that she is owed one month’s notice.

I find that her average pay was determined by the document “Hours Worked 2019, supplied by the Respondent.

I find that this document confirmed that she was paid a total of €8,204.50 for 11 months in 2019. This equates to €745.86 per month.

The Complainant stated that she was given a client, there was no proper introduction. This client was terminally ill. The client had full blown aids, which she was advised of that by her son. Her employer did not tell her this. The client was very difficult to manage as she declined the use of a hoist. She was constantly getting sick and emitting bodily fluids. The only protective equipment that she received was a pair of gloves. The client died and the Complainant was very stressed following this and she needed a few days off. She requested holidays but was refused those days but was offered other dates. Her family had booked a break for her because of her stress and so she couldn’t agree to the change. She told the Respondent that she was going to take those days off anyway. She then decided that she couldn’t take any more of this and she decided to resign her position because of the way that she was treated. She phoned the manager and gave her notice on Friday 29th November 2019. She was asked to confirm it in writing, which she did. Shortly afterwards she received a call to tell her to “go now”. She was very disappointed. She asked if they had cover for her roster for the next week and was told that they had, yet they were unable to facilitate her holiday request. She phoned HR on the following Monday and offered to rescind her resignation, but they declined to let her do it. She was told that they had employed somebody else. She denied that the disciplinary investigations had anything to do with the resignation. The first incident in January 2019 was dealt with. The second incident had not even been investigated before she resigned. She was forced to resign and she sought compensation.

The Respondent stated that they rejected the allegations that she was treated unfairly. She was provided with anything that was necessary for her to carry out her duties. It is the responsibility of the Public Health nurse to provide medical care. They stated that the Complainant is confusing the two types of care that is provided. They do not provide intimate care. The Respondent was unable to confirm if the Complainant was told of the medical condition of the client. They stated that they have no recollection of her rescinding her resignation. They advised that she was issued with a verbal warning in January 2019 and was the subject of a second investigation into performance of duty issue at the time of her resignation.

They stated that the bar is very high to succeed with a constructive dismissal claim. She was given a copy of the grievance procedure and she signed for it. She did not raise a grievance regarding any alleged problems with the client. She did not raise a grievance with not getting holidays when she wanted them. She resigned her position without letting the Respondent company know that she was contemplating resigning. She has failed to reach that bar and so her claim must fail. They advised that there is significant case law to support their position. They cited in particular Nicola Coffey v Connect Family Resource Centre Ltd (UD 11236/2014). This claim is rejected.

Findings and Conclusions:

I note that Sec 1(b) of the Unfair Dismissals Act defines constructive dismissal, “the termination by the employee of his/her contract of employment with his/her 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”.

I find that in a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition, there must have to be something wrong with the employer’s conduct.

I note that Dr Mary Redmond in “Dismissal Law in Ireland P340 states, “There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so to an employee should invoke the employer’s grievance procedure in an effort to resolve his grievance. The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed. Conway v Ulster Bank Ltd In Conway 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 complaint.”

In Berber v Dunnes Stores 2009 ELR 61 Finnegan J stated: “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 as such that the employee cannot be expected to put up with it”.

In UD 1146/2011 the EAT held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

It is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve her grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

Tierney v DER Ireland Ltd UD866/1999 stated, “central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.

I note in the EAT case John Travers v MBNA Ireland Ltd [UD720/2006] it stated, “We find that the claimant did not exhaustthe grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

EAT case UD142/1987 Beatty v Bayside Supermarkets“The Tribunal considers that it is reasonable to expect that procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster bank Ltd 474/1981. In this case the Tribunal considers that procedure was not followed by the Claimant and that it was unreasonable for him not to do so. Accordingly, we consider that applying the test of reasonableness to the Claimant’s resignation he was not constructively dismissed”.

I find that it is accepted that there is a very high bar to be met in order to succeed with a constructive dismissal claim.

I find that I have no doubt that the Complainant believed that she was placed in a very stressful situation.

I note that the Respondent was not in a position to confirm whether the Complainant was informed of the full medical condition of the client.

I note that the Respondent was not in a position to confirm if they had phoned back on Friday 29th November to tell her to leave her employment immediately.

I note that the Respondent was unable to confirm if the Complainant had offered to rescind her resignation.

I find it difficult to accept that they were unable to facilitate her request for a few days off yet were able to let her go immediately.

I note that they did not pay her in lieu of notice yet informed her that she should finish up with immediate effect, despite the Complainant “giving her notice” in writing.

I find that it could not be construed that the notice was with immediate effect.

I find that this has the hallmarks of an employer pleased that she had resigned and would not contemplate taking her back.

However, I am required to act judiciously (within the law).

I find from the above stated cases and the one supplied by the Respondent, there were benchmarks that had to be met in order to succeed with this claim.

I find that the Complainant did not raise a formal grievance regarding the difficulties that she was experiencing regarding this very ill client.

I find that the Complainant did not raise a formal grievance regarding her holiday request.

I find that the Complainant did not let the Respondent know that she was considering resignation and so did not give them the opportunity to resolve any alleged grievances.

However, on the balance of probability I accept that the Complainant offered to rescind her resignation on Monday 1st December.

I find that the Respondent should have discussed this with the Complainant.

I find that this was a form of “cry for help” and they did not interpret it as that and were happy to see her leave their employment.

I find that it is understandable that the Complaint would not understand the complexities of the Unfair Dismissals Act.

I have found that the Respondent Company did not fairly interpret the Payment of Wages Act or Minimum Notice and Terms of Employment Act despite their resources.

Therefore, I find some merit in the Complainant’s case and that she was not treated fairly throughout.

However, I find that she has not established sufficient evidence to support her position that she had no choice but to resign.

I find that she resigned in haste and regretted it.

I find that the Respondent company decided not to accept her rescinding the resignation.

I find that because the Complainant did not raise a formal grievance and did not let the Respondent company know that she was considering resignation, then the Complainant has failed to reach the benchmarks required in order to succeed with a claim of constructive dismissal.

I find that the Complainant was not constructively dismissed.

Alleged changes to contract of employment, constructive dismissal and minimum notice