Complainant

Respondent

Anonymised Parties

A Support Worker

A Healthcare provider

Representatives

Tiernan Lowey B.L. instructed by Wilkie & Flanagan Solicitors

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-00019923-001

21/06/2018

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

CA-00019923-002

21/06/2018

This dispute involves a claim by the complainant against the respondent that he was subjected to a Constructive Unfair Dismissal. The complainant referred this complaint against the above respondent on the 21st of June 2018.     She has also submitted a claim under section 7 of the Terms of the Terms of Employment (Information) Act, 1994

The complainant has submitted that she was subjected to a constructive unfair dismissal by the respondent on the 8th of March 2018.       I proceeded to a hearing of these complaints on the 2nd of September 2019.   The cognisable period for this claim dates from the 22nd of December 2017 and ends on the date of submission of the claim to the WRC on 21st of June 2018.

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

CA-00019923-001

21/06/2018

The complainant submits that

She was not afforded her rights as an employee to respond to the accusation and allegations made against her by a service user,

She was accused of burning a service user mouth by Mr. D her manager as well as other untruthful allegations which were allegedly made against her by the service user, the detail of which she is yet to be made aware off,

Management, without informing and including the complainant dealt directly with service user's family and the HSE on the basis that the allegation was true and, in doing so, had no regard to the complainant’s rights to defend herself myself against the allegation,

Management without properly dealing with the allegation in accordance with fair procedures, proceeded to deal with the complainant on the basis that the allegation was true and presented her with an untenable work rota consisting of split daily shifts which Management knew was an unworkable, unsuitable and unreasonable rota, not only for the complainant due to family commitments, but also for the service users,

she was informed that if she did not accept the untenable rota that she could go to a different location in Dublin which was geographically untenable - it was therefore a take it or leave it rota,

No other member of staff was ever dealt with in this manner, that is to say, no other member of staff against whom allegations were made by the same service user were ever presented with such an untenable or unfair rota or made to work such a rota,

The rota was posted in the office for other staff members to see before the complainant had sight of

same due to her being off on stress related work leave,

she regards herself as being singled out by Management because, as noted above, the service user had previously made numerous complaints about all staff members and had refused to let staff members and Management assist him, yet no such harsh measures were taken against other staff members,

The alleged incident was used as a means by which to make the complainant leave her employment which, because of the manner in which she was being treated, made it impossible for her continue in her work.

The respondent submits that

The complainant was employed by the respondent as a Support worker since November 2010,

The complainant resigned her employment on 8th of March 2018 having been absent from work on sick leave since 25th of October 2016,

A complainant was received from a Service user Mr. N on 28th of August 2016, Mr. N alleged that the complainant had burnt his mouth with a waffle while feeding him,

Following this incident the Service user Mr. N refused to allow the complainant to support him and despite efforts to resolve this matter with Mr. N he continued to refuse to allow the complainant to support and care for him,

The complainant continued to work her roster for the next month but was not permitted to support Mr. N,

The complainants existing roster could not be maintained indefinitely with the refusal of Mr. N to allow her to support him and although her roster was retained for a month following the service users refusal of support from her, this could not be sustained in the long term as it required the respondent to double up on staff at times when the complainant would have been rostered to work alone as Mr. N would have been left with no choice but to call on the complainant for care,

Mr. N stated that he would rather go without support than call on the complainant,

The respondent attempted to resolve the matter with Mr. N but had to respect his wishes not to be supported by the complainant as he refused to allow the complainant access to his house,

The respondent offered the complainant an alternative roster which would ensure that she was not required to support Mr. N,

The complainant was also offered a move to a different location within the service where she could maintain her current roster,

The complainant refused these options and also failed to engage with the respondent in seeking to find a resolution to the roster issue,

The complainant went on sick leave on 25th of October 2016 and did not return to work, prior to her resignation in March 2018.

Separately the complainant raised a grievance against her manager Mr. D in April 2017 in respect of her treatment following the waffle incident.

The applicable Law in relation to Constructive Dismissal is as follows:

Constructive Dismissal is defined under Section 1 of the Unfair Dismissals Act, 1977 as follows:

“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”.

The burden of proof rests with the Complainant in this case.

There are two tests in relation to proving that a Constructive Dismissal has occurred. These are the “Contract Test” and the” Reasonableness Test.” Both relate to the behaviour of the employer.

In Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27 the “contract test” is summarised as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

Addressing the “reasonableness test” the decision summarises the conduct of the employer as follows:

“whether the employer 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.”

The requirement to substantially utilise internal procedures is an essential element of succeeding in a claim of constructive dismissal. This is set out in the case of Conway v Ulster Bank Ltd (UD 474/1981) whereby the EAT said that:

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

Similarly, in Travers v MBNA Ireland Ltd [UD720/2006] the Employment Appeals Tribunal stated,

“We find that the claimant did not exhaust the 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.”

It is also well established that a Complainant is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014] where 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”

The behaviour of the employer in such scenarios is referred to by the EAT in Donnegan Vs County Limerick VEC [UD828/2011] where it is stated: “In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace” and also in McCormack v Dunnes Stores [UD 1421/2008], where it is stated: “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. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

It is the Claimant's case that she was constructively dismissed in the following circumstances:

(a) the Respondent's conduct was such that it constituted a unilateral breach of the complainant’s contract of employment;

(b) the Respondent's conduct was so unreasonable that the complainant could not fairly be expected to continue in her employment;

The complainant advised the hearing that she had commenced working with the respondent in November 2010. She was employed as a support worker with the respondent who provides 24/7 support to 4/5 vulnerable adults with various complex needs who are each housed separately.  

 The complainant in her letter of resignation dated 8th of March 2018 stated that she could no longer work within the respondent organisation due to the treatment she was subjected to since August 2016. I note that the complainant was out on sick leave since October 2016.

The complainant in outlining this treatment referred specifically to the fact that she was called to a meeting by her manager Mr. M on 30th of August 2016 where she was advised that a service user Mr. N had made a complaint that she had burnt his mouth with a waffle while feeding him on the 28th of August 2016.   The complainant stated that she was presented with a complaint form in this regard. The complainant stated that she was later advised that Mr N had made further allegations against her regarding other incidents the detail of which she was not provided.

The complainant advised the hearing that she was advised by her manager that Mr. N was now refusing to be supported by her and that the respondent had to respect his wishes and remove her from Mr. N s support team.  

The complainant stated that she continued to work her normal rostered hours for the next month but was removed from Mr. N s support team.

The complainant advised the hearing that she was called to a further meeting about this matter on 30th of September 2016 and again on the 12th of October 2016 where she was advised that Mr. N continued to refuse to be supported by her and that the matter had now been escalated to involve Mr. Ns family as well as the HSE.   This meeting was followed up by a letter from the respondent dated 13th of October 2016.

The respondent in this letter advised the complainant that they had suggested that Mr. N take part in mediation to resolve the issue but that Mr. N had refused to participate in mediation.   The respondent advised the complainant that the HSE had stated that Mr. N had the right to refuse to be supported by the complainant and asked that the respondent support his decision by not rostering the complainant to support him.

The respondent advised the complainant that Mr. N had told them that his decision was final that he would not accept support from the complainant and that he had withheld going to the toilet for 5 hours earlier that week rather than call on the complainant for support.

The complainant stated that the respondent had at this point advised her that they had over the past month retained her roster by doubling up on staff in order to avoid occasions where the complainant would have to support Mr. N on her own but that this was financially unsustainable in the long run and that they would now have to explore other solutions. The respondent in the meeting of 12th October 2016 had presented the complainant with an alternative roster which would avoid her having to support Mr. N, but which would necessitate the complainant having to work split shifts. The respondent in a follow up letter of 13th of October referred to this as a ‘sample roster’. The respondent at this time also advised the complainant that another alternative was that she could work in another of the respondent’s services in a different location.   The letter of 13th of October also states that the respondent wants to work with the complainant to explore every viable option the respondent added that some options which could be explored could be a change in the complainants work pattern or location.

The complainant advised the hearing that following the meeting of the 12th of October she had gone on sick leave due to work related stress.

The complainant advised the hearing that the ‘sample roster’ suggested by the respondent would have necessitated her working split shifts with a two-hour break in the middle of the day which was not practical as she lives a half an hour from work.   The complainant stated that this split shift roster also meant a reduction in her wages as she was no longer rostered to work nights or premium shifts.

The respondent advised the hearing that it was trying to reach a solution to avoid the complainant having to provide support to Mr. N and stated that Mr. N had made it clear that he would rather receive no support than to be supported by the complainant. The respondent stated that it had met with Mr. N on five occasions to try and resolve the matter and on the last occasion a meeting of 5th of October 2016 he had made it very clear that he would not accept support from the complainant and did not want to discuss the matter again.   The respondent stated that it could not take the risk that Mr. N would go unsupported in an emergency rather than call on the complainant if she was the only person working.   The respondent told the hearing that this meant that the complainant could only be rostered at times when there was more than one support staff member required.   The respondent added that this was presented to the complainant as a sample roster and she was asked to provide suggestions or alternatives which would meet the aim of the complainant not having to support Mr. N.   The respondent stated that the intention was not to reduce the complainant’s hours or wages but to avoid the complainant being rostered alone so that Mr. N would not have to call on her for support. The respondent also added that it is dependent on the HSE for funding and that the HSE had recommended that the respondent respect Mr. N’s decision not to be supported by the complainant.

The complainant stated that the other option she was offered in order to retain her rostered hours was if she was to move to a different location. This location would involve her travelling one hour fifteen minutes to work each way whereas she currently travelled half an hour each way. The complainant told the hearing that she felt she was being told that these were her only options and that she could take it or leave it.

The respondent advised the haring that the complainant had refused these options and had signalled her intention to continue to work her current shift pattern despite the respondent’s position in respect of Mr. N.   The respondent wrote to the complainant on 24th of October indicating that she could retain her current shift pattern until 30th of October 2016, a further meeting was arranged between the complainant and respondent for 26th of October 2017, which the complainant failed to attend despite the fact that it was scheduled during her scheduled shift time.

The respondent advised the hearing that the complainant had notified the service at 7 pm on the 25th of October that she would not be attending her shifts due to start at 8 am on 26th of October or on 27thof October. The respondent stated that it was now in a position where the complainant had signalled that she would not work the proposed new shift pattern and did not show up for her current shift pattern and had given no indication of her intentions as regards work.

The complainant on 26th of October submitted a medical cert stating that she was unfit for work until 9th of November 2016.   The complainant continued to submit medical certs up to and including January 2017 and was referred by the respondent for an Occupational Health assessment on 9th of January 2017.     The respondent advised the hearing that a report was received from Medmark on the 23rd of January stating that the complainant was unfit for work for the next six weeks and also unfit to engage.

The complainant continued to receive her full salary while on paid sick leave up to 19th of January when she was advised that she would move to half pay as per the respondent’s sick leave policy.

The complainant wrote to the respondent on 8th of February 2017 advising that the Medmark doctor had recommended that she undergo counselling for 4 to 6 weeks after which her progress would be reviewed.   The complainant in this letter also disputed the reduction in her wages to half pay as she submits s that it was due to the respondent’s treatment of her that she was out on sick leave.     The respondent in correspondence dated 21st of February replying to the complainants letter of 8th of February explained that the expiration of fully paid sick leave and movement to half pay was dictated by the respondents sick pay policy, this letter also notified the complainant that her manager Mr. D had lobbied on her behalf to try and avoid the impasse between the complainant and the service user Mr. N the respondent also notified the complainant at this time that the service user Mr. N had expanded his complaint against her but that the details of that would be provided at a later stage when the complainant was fit to engage.

The complainant advised the hearing that she felt that was being punished by the respondent due to an allegation that she burned Mr. N s mouth with a waffle but that she was never given a chance to put forward her side of the story or to confirm or deny the allegation and that no investigation had taken place to establish whether the incident had happened.   The respondent disputed this and advised the hearing that there was no disciplinary action taken in respect of the complainant the respondent added that it was merely trying to find a way to avoid the complainant having to provide support to Mr. N given that he had refused to be supported by her.

The respondent stated that once the service user refused to allow the complainant to support him and he remained adamant in this refusal the veracity or otherwise of the waffle incident became a secondary issue as they could not force a service user to allow a support worker to care for him where he had expressly refused to accept support from her and had indicated that he would put his health at risk rather than accept support for the complainant.

The complainant went on to state that the respondent has a comprehensive complainants management procedure which include a number of stages of complaint investigation and which she submits was not followed in this case. The respondent advised the hearing that stage one of the complaints management procedure provides for an informal resolution to a complaint and that mediation is recommended in this stage. Th respondent stated that it never got any further than the first stage in this case as they were still exploring alternatives with the complainant to try and resolve the matter informally when she resigned.   Th respondent added that the complainant resigned in March 2018 but that she had advised them as early as March 2017 that she considered herself to have been constructively dismissed.  

The respondent went on to state that a lot of correspondence had taken place between the parties while the complainant was absent from work and that the complainant had a number of times alleged that she considered herself to be constructively dismissed. In addition, the complainant in March 2017 had asked the respondent for a reference stating that she had no choice but to seek alternative employment.   The complainant stated that she was given no option as the respondent had provided her with an unreasonable and unrealistic roster which would have reduced her pay considerably or the option of travelling a considerable distance each day to a different location within the service.

The respondent in reply to this advised the complainant that that she could not claim constructive dismissal unless she had exhausted all internal procedures and directed her towards the respondent grievance procedure rather than ‘taking an irreversible action to resign’. Following this correspondence, the complainant in April 2017 lodged a formal grievance under the respondent’s grievance procedure.   A grievance meeting was held on the 11th of May 2017.

The complainant submits that the respondent was forcing her to change her work location and had breached a term of her contract which provided that her location of work was in Dundalk.

The complainant’s contract was submitted to the hearing.   In examining the contract, it does state that she will be based in Dundalk but also states that the respondent can from time to time vary her place of employment. In addition, the contract states that she may be rostered to work for other departments or services in line with operational requirements and the needs of the service.   The complainant also submits that the respondent’s proposal of a split shift roster which would have the effect of reducing her salary also amounts to a breach of her contract. The complainants contract provides for an annual salary of €29,809 based on a 39-hour week. The contract also states that the complainant will be required to work weekends and nights in accordance with her roster but does not guarantee a set number or minimum number of nights. The respondent stated that the contract was initially for a 39-hour week but that this was reduced following a request from the complainant.

The respondent advised the hearing that the proposed changes to the complainant’s roster or location were only suggestions and that she was not forced to take either of these options. The respondent added that it had sought the complainants input as to what alternatives she might suggest given that they could not roster her to work her previous shift pattern in Dundalk given that she could not provide support to Mr. N. The respondent also added that here was nothing permanent about the situation as they had advised the complainant that this had to be done until the situation could be resolved.   The respondent added that changes to rosters and locations had happened to other staff where service users had died, and funding had been reduced. The respondent stated that these matters are outside of its control as it is reliant on funding from the HSE for its operation.

The complainant advised the hearing that the respondent had made it clear that she could not continue her current roster in Dundalk and that the options presented by them were unreasonable. The complainant told the hearing that she had attended her GP on the 13th of October and been signed off work on stress leave.

The complainant stated that she had lodged a grievance under the respondent’s grievance procedure in April 2017 having been told by the respondent in March 2017 that she could not claim constructive dismissal unless she had exhausted all internal procedures and so she had lodged a grievance under the grievance procedure in respect her treatment by her manager Mr. D.     The complainant in her correspondence to the respondent stated that she was forced to submit a grievance by the respondent. The respondent in its correspondence to the complainant advised her that she was not forced to submit a grievance, that this was her own choice and that she was still a valued employee of the respondent.    The complainant stated that she was unhappy with the outcome of the grievance which she did not receive until September 2017 and which had failed to find in her favour.

It appears form the evidence adduced by the parties that an impasse arose whereby the respondent advised the complainant that she could no longer work her previous roster due to the issues with Mr. N and following which the respondent proposed alternatives to keep the complainant in her current location on a different roster or in a different location on her current roster.   The complainant went out on sick leave from 12th of October 2016 and repeatedly advised the respondent from March 2017 that she considered herself to be constructively dismissed.   The complainant advised the hearing that she was fit to return to work in May 2017 but that the respondent had refused to give her her old roster insisting instead that she come up with an alternative roster. The complainant made some suggestions re proposed roster changes in a letter dated 2nd of June 2017 and these were replied to by the respondent on 7th of June 2017. The respondent did not find the complainants suggestions workable as one of her suggestions would mean doubling up on staff and another would leave the complainant working on her own for longer periods which would leave service user Mr. N with no one to call upon for support in a situation where he had refused support from the complainant.   Further correspondence ensued in June, July and August 2017 regarding minutes of the grievance meeting and differing accounts of items discussed at the meeting as well as matters raised in the grievance. The complainant during this time continued to assert that she should be restored to her original rota. The complainant was notified in September 2017 that her grievance was not upheld she appealed this in October 2017 and her appeal was unsuccessful. The complainant was notified of this in December 2017 and was urged by the respondent to re-engage with management to agree a suitable roster to enable her return to the workplace. The complainant responded on 16th of January 2018 stating that she would be proceeding with her claim to the WRC as she regarded herself as being constructively dismissed as previously stated.   The respondent replied to this letter on 24th of January 2018 again asking the complainant to engage with management to agree a roster.   The respondent reiterated this in a letter dated 7th of March 2018.    The complainant resigned on 8th of March 2018.

The complainant in submitting her case stated that her employment was with the respondent and not with Mr. N and and that the respondent was obliged to retain her hours of work and location irrespective of Mr. N s position.   The complainant stated that a third part should not have influenced her employment or otherwise with the respondent. The complainant in making this assertion cited the EAT case of Catherine Merrigan Vs Home Counties Cleaning Ireland Ltd. (M2507 UD904/1984), this case involved a cleaner who had worked in a hospital and was employed by a cleaning company. The complainant in that case had been the subject of a newspaper article associating her family with involvement in drugs following which she was dismissed form her employment. Her employer, the cleaning company stated that they had no option but to dismiss her as the hospital had refused to allow her to work there following the newspaper article and allegations contained therein about members of her family. In examining this case I note some differences between that and the present case firstly, that case involved a complainant being dismissed from her job which did not happen in the present case , in addition the dismissal was due to pressure from a third party due to concerns about a newspaper article and allegations relating to the complainants family members, the dismissal took place without any indication that the complainant remaining in employment posed any risk to the hospital or its clients unlike the present case where the respondent has reasonable belief that Mr. N would risk his health and wellbeing rather than be supported by the complainant.

The complainant in submitting the reasonableness test states that the respondent in its proposal to her that she accept a split shift roster or that she moves to a different location has behaved so unreasonably that she can no longer be expected to work for them and had no choice but to consider herself dismissed.

From the correspondence and the evidence adduced it appears that the respondent continued to engage with the complainant to seek to find a solution to the roster issue and to reassure the complainant that she was not dismissed but that she was still a valuable employee.   Th complainant stets that she was fit to come back to work on in May 2017 but that no one gave her a roster. The complainant stated that she texted Ms. L asking for her roster and the reply she received from Ms. L was that she should contact the service to get her roster.   Ms. L at the hearing stated that she had not realised at the time that the text was from the complainant as they had another employee with the same first name, so she thought it was from her and so directed her to contact the service for her roster.  

The respondent in reply to this states that the complainant was aware of the respondent’s position and that she was continuously asked to come up with alternatives to the roster issue if she found the alternatives presented by them to be so unsuitable.

The respondent stated that the complainant’s resignation was premature, and that the complainant had made it clear form March 2017 that she was going down the road of constructive dismissal as she stated this in many of her letters to them.     The respondent stated that it was open to suggestions from the complainant and was awaiting her return to work but that they could not roster her until she advised them that she was coming back and engaged with them in a meaningful way in coming up with an alternative to her previous Dundalk roster which was no longer viable due to Mr. N s refusal of her support.

Th respondent told the hearing that the complainant herself chose to leave and did not act reasonably by failing to engage with them in trying to reach a solution.   The respondent added that the complainant only submitted a grievance after they had advised her that she could not claim constructive dismissal without exhausting all internal procedures. The respondent stated that the complainant having engaged in the grievance procedure then continued to refuse to engage with them in finding a solution to the roster problem instead insisting that she should retain her roster hour and location irrespective of the needs of Mr. N.

The respondent added that it cannot force any service user to allow a support worker into their home where they have expressly stated that they will not allow it. The respondent added that the complainants contract states that requirements will change if the needs of service users change.   The respondent added that Mr. N s refusal of support from the complainant very clearly amounted to a change in service users needs as the complainant could no longer be rostered to support Mr. N and therefore could not be rostered for those hours where only one support worker is needed to support all service users.

Obligation on a complainant to act reasonably

I note that the complainant from a very early stage as early as March 2017 referred to the fact that she considered herself to have been constructively dismissed, a full year before her actual resignation. In addition, no evidence was adduced to show that the respondent’s behaviour had become so intolerable by the date of her resignation that she felt she had no option but to resign at that point in time. The complainant at the hearing focused a lot on the allegation made by Mr. N regarding the waffle incident and on the respondent’s failure to establish whether it had happened as Mr. N had alleged and the complainant felt she had not been given an opportunity to put her side of the story or to have the allegation fully investigated.   The respondent was of the view that once Mr. N refused t be supported by the complainant and once it became clear that he would not resile form this stance, the issue became about keeping the complainant on the roster in such a way as to avoid her having to be the only person who Mr. N could call on for support.  

In all of the circumstances of this complaint, I am satisfied that the complainant has not established that the respondent’s behaviour was such that it amounted to a significant breach going to the root of the contract of employment, or which indicated that the respondent no longer intended to be bound by one or more of the essential terms of the contract such that the complainant was entitled to treat herself as discharged from any other performance.     I am also satisfied that the complainant has failed to establish that the respondents conduct was so unreasonable that she was justified in leaving her employment.   In addition, I find that the complainant did not act reasonably in resigning her employment without meaningfully engaging with the respondent in trying to find a resolution to the rostering issue given that Mr. N could not be forced to accept support from her and given that this meant she could not be rostered to work alone.    

Accordingly, I conclude that the complainant has failed to discharge the burden of proof and that this claim is not well founded.

I conclude that the complainant has failed to discharge the burden of proof and that this claim for alleged Constructive Unfair Dismissal is not well founded.

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

CA-00019923-002

21/06/2018

The complainant submits that

The respondent did not advise her of a change to her terms and conditions of employment and salary in particular that her salary was varied from an annual salary to a wage based on hours worked on a fluctuating basis.

The respondent submits that

There was no change to the complainant’s terms and conditions of employment.

Section 5 of the Terms of Employment (Information) act, 1994 obliges the employer to notify the employee of changes to a term or condition within 1 month and states:

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, 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, or  

The Complainant alleges that her contract was changed unilaterally in October 2016 when she was presented with a revised roster which had she accepted it would have had the effect of changing her from a salaried employee to an hourly rate employee and which would have had the effect of reducing her salary considerably.

The respondent advised the hearing that the complainant’s contract and or terms of employment were not changed, the respondent stated that the complainant was on a salary of €29,809 based on a 39-hour week within which she worked weekends and nights, this is set out in her contract of employment.   The respondent stated that the annual salary is based on a 39-hour week in accordance with HSE pay scales.       The respondent stated these hours had previously been reduced at the complainant’s request. The contract also states that the complainant will be required to work weekends and nights in accordance with her roster but does not guarantee a set number or minimum number of nights.

The respondent told the hearing that following an incident where a service user Mr. N had made a complaint about the complainant following which he refused to allow the complainant to provide support to him up to the point where he stated that he withheld going to the toilet for 5 hours on one occasion rather than call her for support. The respondent states that it had tried to resolve the issue with the service user meeting with him on five occasions to try and resolve the matter but to no avail.   The respondent had also offered mediation between the service user and complainant, but the service user had refused.   The service user in question had escalated the matter to involve his family members and the HSE and had refused to allow the complainant access to his house.  The HSE had asked that the respondent respect the service users wishes in this regard.   The respondent submits that in these circumstances it was left with no choice but to try and come up with an alternative roster whereby the service user would not be forced to accept support from the complainant and thus the complainant could not be rostered to work alone in order that the service user Mr. N would not be forced to call upon her for support or do without support in the event of the complainant being the only support worker rostered to work.

This situation arose following an initial allegation by service user Mr. N that the complainant had burned his mouth with a waffle while feeding him.   This allegation was later followed by further allegations by Mr. N against the complainant and in his refusal to be supported by her.

The respondent advised the hearing that it had in seeking to find a resolution proposed a different roster whereby the complainant would no longer be working nights or premium shifts which could have the effect of reducing her salary.    The complainant states that her contract provides for an annual salary but that the proposed new roster showed her wages as an hourly rate to be paid in accordance with the hours worked. The respondent stated that the annual salary has always been based on an hourly rate and was based on a 39-hour week in accordance with HSE pay scales.   The complainant submits that she was forced to either accept the proposed new roster or accept a move to a different location which she again submits reflects a change to her contract.

The respondent denies this and states that it continuously engaged with the complainant in seeking to find a resolution to the roster problem. The respondent advised the hearing that the proposed roster was not implemented as the complainant never worked the new roster but went on long term sick leave during which she continued to be paid her salary before going on to half pay when she exhausted this in January 2017.   The complainant resigned her employment in March 2018 and has claimed constructive unfair dismissal which is the subject of a separate claim under CA-00019923-001.    

As regards the change of location the complainant submits that the respondent was forcing her to change her work location and had breached a term of her contract which provided that her location of work was in Dundalk. The complainant’s contract was submitted to the hearing.   In examining the contract, it does state that the complainant’s job will be based in Dundalk but also states that the respondent can from time to time vary her place of employment. In addition, her contract states that she may be rostered to work for other departments or services in line with operational requirements and the needs of the service.  

The respondent advised the hearing that the proposed changes to the complainant’s roster or location were only suggestions and she was not forced to take either of these options. The respondent added that it sought the complainants input as to what alternatives she might suggest given that they could not roster her to work her previous shift pattern in Dundalk given that she could not provide support to Mr. N. The respondent also added that here was nothing permanent about the situation as they had stated to the complainant that this had to be done until the situation could be resolved.   The respondent added that changes to rosters and locations had happened to other staff where service users had died, and funding had been reduced.

The respondent advised the hearing that the suggestion of a different location was an attempt by the respondent to resolve the roster issue by providing the complainant with her current roster in a different location. The respondent stated that this was only a proposal and was never implemented as it was not accepted by the complainant.

I am satisfied from the totality of the evidence adduced that there was no breach of Section 5 and I declare the claim to be not well founded.

I am satisfied from the totality of the evidence adduced that there was no breach of Section 5 and I declare the claim to be not well founded.

Constructive dismissal, Reasonableness, Contract test, Terms of Employment