ADJ-00013997

Complainant

Respondent

Anonymised Parties

An Employee

An Intellectual Disability Service Provider

Representatives

Gary Mulchrone Gilvarry & Associates

Ronnie Lawless IBEC West

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018257-001

02/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018257-002

02/04/2018

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

CA-00018257-003

02/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00018257-004

02/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018257-005

02/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018257-006

02/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018257-007

02/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00018257-008

02/04/2018

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

CA-00018257-009

02/04/2018

The Complainant commenced employment with the Respondent, a Disabilities Service Organisation, on 1 April 2005, in the role of Social Care Leader.

The Complainant continued in this role until February 2010 when she applied to change her grade of employment. The Complainant worked as a Social Care Worker from February 2010 to July 2011, at which time she reverted to the role of Social Care Leader, initially on a nine-month contract and subsequently on a permanent basis thereafter.

In May 2017, the Complainant submitted a request to be allowed to step down from her position as Social Care Leader. The Complainant indicated a preference to step down for a period of one year, however, in the event that that was not possible she indicated she would be happy to step down on a permanent basis.

On 3 July 2017, the Respondent’s Regional Service Manager (RSM) informed the Complainant by phone that a position had been identified for her as a Social Care Worker. On 5 July 2017, the RSM received correspondence from the Complainant Trade Union querying the job description for the post being offered to the Complainant. The RSM reply to the Trade Union on 6 July 2017, setting out the terms and arrangements attaching to the Complainant’s new position.

On 12 July 2017, the Respondent’s Human Resources Manager (HRM) wrote to the Complainant setting out the job offer, which was accepted by the Complainant on 18 July 2017.

The Complainant went on certified sick leave from 15 July 2017 until 4 September 2017, from which point she took annual leave until 16 October 2017. The Complainant attended for an Occupational Medical Assessment on 7 September 2017, which confirmed that she was fit to return to work after expiry of her then current illness certification.

While on annual leave, the Complainant attended a meeting with the Respondent’s RSM and HRM on 3 October 2017, during which she advised of her wish to go back to her old post as Social Care Leader or, in the event of that not been possible, to be recognised at this grade (i.e. Social Care Leader) in her new post of Social Care Worker.

The Respondent’s HRM wrote to the Complainant on 9 October 2017, setting out the reasons why it was not possible to return her to her previous position or to red-circle her, at the SCL grade, in her new position as a Social Care Worker. The letter further confirmed that on her return from annual leave on 16 October 2017, the Complainant would be taking up the role of Social Care Worker. However, the Complainant reverted to sick leave on 17 October 2017 and did not return to work.

The Complainant was certified as fit to return to work from 23 November 2017 at which point she had secured a position with another employer. As a result, the series of telephone calls and email correspondence took place between the Complainant and the Respondent’s RSM, in which the latter was requesting that the Complainant submit confirmation in writing that she had resigned from the Respondent’s employment. In the absence of such confirmation, the Respondent’s HRM wrote to the Complainant on 22 December 2017 advising that, as she had taken up new employment with another employer on 27 November 2017, the Respondent considered that she had resigned from her employment with them.

On 2 April 2018, the Complainant submitted the following complaints to the WRC:

1.       Complaint under the Industrial Relations Act, 1969, in relation to the Respondent’s failure to investigate complaints of bullying and harassment. (Complaint Reference CA-00018257-001)

2.       Complaint under the Industrial Relations Act, 1969, in relation to the Respondent’s failure to address the stressful working environment and their decision to demote the Complainant. (Complaint Reference CA-00018257-002)

3.       Complaint under the Payment of Wages Act, 1991, in relation to the Respondent’s failure to pay the correct rate for additional hours. (Complaint Reference CA-00018257-003)

4.       Complaint under the Minimum Notice & Terms of Employment Act, 1973, in relation to the Respondent’s failure to provide notice or payment in lieu on termination of employment. (Complaint Reference CA-00018257-004)

5.       Complaint under the Organisation of Working Time Act, 1997, in relation to penalisation for refusing to cooperate with a breach of the Act. (Complaint Reference CA-00018257-005)

6.       Complaint under the Organisation of Working Time Act, 1997, in relation to failure to provide daily rest periods. (Complaint Reference CA-00018257-006)

7.       Complaint under the Organisation of Working Time Act, 1997, in relation to failure to provide rest breaks. (Complaint Reference CA-00018257-007)

8.       Complaint under the Organisation of Working Time Act, 1997, in relation to being required to work more than the maximum permitted hours. (Complaint Reference CA-00018257-008)

9.       Complaint of unfair dismissal under the Unfair Dismissal’s Act, 1977, (Complaint Reference CA-00018257-009)

In addition to providing a detailed background and timeline, the Complainant and her representative made the following submissions in support of each of the individual complaints:

Complaint Reference CA-00018257-001: (Industrial Relations)

It was submitted on behalf of the Complainant that the Respondent failed to properly investigate any of the issues raised by her in relation to bullying in the workplace, stress and various issues relating to conditions of work. It was submitted that the Respondent’s failure to establish the veracity of written allegations made against the Complainant, by work colleagues, was a gross breach of any understanding of fair procedure.

According to the Complainant’s submission, every employee is entitled to the dignity of their professional reputation. Consequently, to allow such allegations to be made and remain on record, without the right of challenge, at a time when the Complainant was experiencing serious difficulties at work, represented a serious breach of fair procedures. In this regard, the Complainant is seeking a recommendation that the Respondent be directed to ensure that any such allegations made are without merit and should be removed entirely from the Complainant’s personnel file.

It was further submitted that the Complainant was subjected to appalling psychological stress in her workplace, with the full knowledge of Management, who never acknowledged or investigated the situation. In this regard, the Complainant is seeking a recommendation that the Respondent should have activated appropriate procedures to investigate complaints and to fully engage with and support her position. The Complainant is further seeking compensation, pursuant to the Act, given the failures and/or omissions on behalf of the Respondent in this regard.

Complaint Reference CA-00018257-002: (Industrial Relations)

Under this element of her complaint, the Complainant is seeking a recommendation that the offer of a demotion, in July 2017, in response to the Complainant’s letter, was a form of reprimand for raising the issues she had raised.

It was submitted on behalf of the Complainant, that she should have been offered all the support necessary in her work, without any reduction in the terms and conditions she previously enjoyed.   According to the Complainant, it was unfair and grossly deficient to demote her in response to what she had said. It was further submitted that the Complainant did not ask for a demotion but merely sought to step back from her duties at that time as she could no longer cope with the stress of the job.

In this regard, the Complainant is seeking a recommendation that she was under no obligation to accept a demotion and that any such offer is void on the grounds of absence of fair procedures

Complaint Reference CA-00018257-003: (Payment of Wages)

According to the submission made on behalf of the Complainant, the Respondent’s failure to pay the correct overtime rate (commensurate with the position of Social Care Leader) was a breach of the Payment of Wages Act.

Using payslips from the period April 2015 to June 2017, it was submitted that the Complainant regularly exceeded her contracted 39 hours per week by 20 - 25 hours. Based on a 39-hour week/78-hour fortnight, it was contended that the gross pay equated to €26.88 per hour as the standard rate of pay. It was further submitted that, on each occasion overtime was paid, it was paid at the same hourly rate, because it was calculated on a lower which meant, in effect, that the Complainant was not paid any premium for working her contracted hours.

It was submitted, on behalf of the Complainant, that the Respondent should be required to make the correct overtime payment based on her hours worked at the commensurate rate for her grade.   According to the Complainant’s submission, this rate should be at least time and a half with double paid for Sundays.

Complaint Reference CA-00018257-004: (Minimum Notice)

According to the submissions made on behalf of the Complainant, she did not receive notice of the termination of employment she is entitled to pursuant to her contract, based on 12 years’ service.

Complaint Reference CA-00018257-005: (Organisation of Working Time)

The Complainant contends that she was penalised contrary to the provisions of the Organisation of Working Time Act for highlighting multiple breaches of the Act and refusing (by way of seeking to “step back” from her role) to cooperate with further breaches. It was submitted by the Complainant that she had highlighted abuses of the Act on many occasions and that this coupled with the complete and utter absence of any support from management constituted clear penalisation.

It was submitted on behalf of the Complainant that, by doing nothing in response to her complaints, the Respondent was legitimising the breaches of the Act. According to the Complainant’s submission, her abandonment by management and her treatment after June 2017, constituted clear penalisation under the Act and, in this regard, the Complainant is entitled to appropriate compensation.

Complaint Reference CA-00018257-006: (Organisation of Working Time)

The Complainant submitted that she did not get a daily rest period while working. According to the Complainant, a rest period would only arise once in a working month, such were the hours she was working. It is further submitted that this situation persisted, most especially from April 2015 to June 2017.

Complaint Reference CA-00018257-007: (Organisation of Working Time)

According to the Complainant, she did not get breaks while on duty. She submitted that she was always “on roster” and, as the required support staff was not available to her, it was impossible to take a break in the manner envisaged by the Act. Consequently, the Complainant submits that the Respondent’s failure to provide breaks was a clear breach of Section 12 of the Act.

Complaint Reference CA-00018257-008: (Organisation of Working Time)

The Complainant submitted that while her standard working week was 39 hours, in the period between April 2015 and June 2017, she routinely worked over 60 hours per week. The Complainant submitted payslips in support of contention in this regard.

It was submitted on behalf of the Complainant that working such hours on a regular basis left her drained and exhausted. However, despite raising the issue with management on several occasions, the Complainant contends that she was never listened to. Consequently, the Complainant contends that this represents a clear breach of the Act and, given that the breaches were so obvious and flagrant, that significant compensation should be awarded as a rebuke to the Respondent for its flagrant disregard of the Act.

In making this particular submission, reference was made to the comments of the ECJ in the case of Sabine Von Colson & Eliabeth Kamann v Land Nordrhein-Westfalen [Case 14/83], the application of which, it is contended, is appropriate in the within case.

Complaint Reference CA-00018257-009: (Unfair Dismissal)

It was submitted on behalf of the Complainant that a dispute had arisen between her and the Respondent, wherein she felt it was unfair to expect her to relinquish her grade and position as a result of the issues she had highlighted. The Complainant submitted that she was effectively demoted, with the loss of salary in the region of €8,000 per annum.

It was further submitted that, while the Complainant was on sick leave from June 2017, she was on a basic salary which consisted of the top up on the illness benefit she was receiving from the Department of Social Protection. According to the Complainant’s submission, payment from the Respondent ceased in August 2017.

According to the Complainant submission, while awaiting her return to work with the Respondent to her old post, she took up temporary work, in November 2017, with a different service supplier. It was further submitted that the Complainant informed the Respondent’s HR she was taking up this temporary employment while she awaited confirmation that her terms and conditions would be preserved and that there would be adequate supports in place for her to return to work.

It was submitted on behalf of the Complainant, that the Respondent maintained she had refused to take up the demoted role offered to her while she was on sick leave. The Complainant contends that it was unfair that she had to accept this situation and requested the preservation of her existing terms and conditions and a return to work with appropriate supports. It was submitted that, in response, the Respondent’s HR Department contacted the Complainant by phone and requested that she submit a letter of resignation, which she refused to do and pointed out that she was not resigning and wanted to return to work. According to the Complainant’s submission, she was then dismissed by Respondent.

In conclusion, the Complainant submitted that she had to take up temporary work while waiting to return, as she could not afford to live off social welfare. It was further submitted that when she was declared fit to work, she sought to return to old post, but was not accommodated in this regard.

According to the Complainant’s submission, her letter of June 2017 was submitted in extreme conditions where she was under enormous pressure. She contends that she never resigned from her role and used the term “step down” as opposed to indicating or at any time putting in writing that she was resigning. The Complainant further submitted that she was never afforded the chance to take time off from her position or to return to an alternative position of equal status and pay.

The Complainant submitted that she was receiving treatment for severe depression at the time and should never have been asked to agree to any change to her terms and conditions of employment. She further contends that it is in breach of her contract to offer her a new role on new terms and conditions and that this should never have happened.

According to the Complainant, she took the temporary work out of financial necessity as the Respondent refused to accept her back on her original contract. It was further submitted that while the Respondent demanded the Complainant’s resignation, she refused to provide it. Therefore, it is contended that the termination of her employment resulted from a dismissal.

In addition to providing a detailed background in relation to the Complainant’s employment history, the Respondent made the following submissions in response to each element of the Complainant’s complaints:

Complaint Reference CA-00018257-001: (Industrial Relations)

The Respondent submitted that the statement of complaint from the Complainant under this heading is untrue.

According to the Respondent’s submission, they have a Dignity at Work Policy in place which clearly sets out how to address concerns in relation to bullying in the workplace, harassment or sexual harassment, together with the expectations of line managers and employees in relation to such matters.

According to the Respondent’s submission, they were not made aware of any issues within the Complainant’s work team, other than one that occurred in January 2015. It was submitted that this related to an issue which arose between three members of staff, which was deemed to have fallen within the remit of the Dignity at Work Policy. It was further submitted that one staff member identified concerns in relation to working with two other staff in the service. According to the Respondent, the Complainant did not want to be involved in dealing with this issue involving two of the staff and, as a result, the matter was dealt with by a member of the HR Department and the Regional Services Manager (RSM).

The Respondent submitted that all three parties had agreed to enter into mediation, however, before that could be arranged, the Complainant lodged a number of complaints against the two staff concerned. According to the Respondent, the Complainant lodged her complaints verbally in April 2015 and these included issues relating to dignity at work, Trust in Care/Safeguarding issues. It was further submitted by the Respondent that verbal complaints had also been made to the Complainant by a local service provider regarding the same two staff.

According to the Respondent’s submission, the complaints as submitted by the Complainant were regarded as serious and, as a result, a decision was taken to place the two staff members off duty with pay.   It was further submitted by the Respondent that an investigation, undertaken by an external party, was carried out. According to the Respondent’s submission, this investigation, which took a considerable period of time to conclude, impacted on the whole staff team and led to an extremely difficult period of time for the team.

The Respondent submitted that both HR and the RSM supported members of the team at different times throughout and following the investigation. According to the Respondent, the Complainant was informed of the outcome of the investigation and was updated in relation to what was happening. It was further submitted that the staff members concerned returned to work in different locations, outside of the area that the Complainant worked in. However, the Respondent submitted that both staff members appealed the outcome of the investigation, both internally and externally to the WRC Adjudication Service, while the Respondent submitted an appeal to the Labour Court in relation to one of the cases. It was further submitted that the staff members remain working for the Respondent, albeit in different locations to those where the Complainant worked.

In conclusion on this particular complaint, the Respondent submitted that the Complainant did not make her manager or HR aware of any other incidents of bullying and harassment by staff members nor had she raised any issue of this nature other than with the two staff referred to above.

Complaint Reference CA-00018257-002: (Industrial Relations)

In response to this element of the Complainant’s complaints, the Respondent submitted that she receives significant support and input throughout the preceding years in her role. It was submitted that the Respondent has a Supervisory Support Policy in place, which in the Complainant situation would have seen the support provided by her direct manager, the Regional Services Manager (RSM). It was further submitted that the Complainant also received reports from Evaluation and Training, Human Resources and community disciplines in relation to day-to-day work.

According to the Respondent, the Complainant was also part of an Area Team, consisting of other managers at the same grade and in similar roles. It was submitted that this Team meets monthly to be briefed on work and to deal with issues arising and that it provides an opportunity for college support and, again, management support. In addition, it was submitted that the Complainant had regular one-to-one supervisory meetings, which are minuted and a copy retained by both the staff member and the Manager.

In support of their submission in this regard, the Respondent provided a detailed list of the Supervisory Support meetings which took place between the Complainant and the RSM. This evidence shows that 4 such meetings took place in 2015, 15 in 2016 and 5 in 2017. In their submission, the Respondent indicated that the increased frequency of meetings in 2016 arose as a result of the RSM deeming these additional meetings necessary in order to support the Complainant in her role. In addition, the Respondent provided, as evidence, the minutes of a number of the support meetings that took place between the Complainant and her manager.

It was further submitted by the Respondent that in an effort to help the Complainant developed in her role as a Manager, she was afforded the opportunity to attend to frontline management development training courses, one in 2016, which was delivered by the HSE on Management Development and a Level 6 QQI Managing People course in 2017.

In response to the Complainant’s allegation that she was demoted, the Respondent submitted that this was not the case. According to the Respondent, the Complainant initially requested to step down from the post as Social Care Leader on 30 April 2017. It was submitted that, following the initial request, the RSM spoke with the Complainant on a number of occasions, including a meeting on 3 May 2017. It was further submitted that the Complainant wrote to the RSM on 5 May 2017 formally requesting to step down for one year or permanently, if this could not be facilitated.

According to the Respondent, “stepping down” means that the person is seeking to work at a lower grade than their contract. It was further submitted that it is the Respondent’s practice that, where staff request to step down, they are facilitated as the Respondent wishes to acknowledge and appreciate the work of the person and their experience. In addition, the Respondent submitted that it is their practice that staff requesting to step down from a Social Care Leader level would move to a Social Care Worker position. In this regard, the Respondent submitted that the Complainant had made a similar request earlier in her career, which had been accommodated on that occasion and, therefore, she was fully aware of what was involved in such a request.

It was submitted that, on 3 July 2017, the RSM advised the Complainant in a phone call that a post at SCW grade had been identified for her. According to the Respondent, the RSM received correspondence, dated 5 July 2017, from the Complainant’s Trade Union querying the job description for the post, together with a few other queries. It was submitted that the RSM replied to this correspondence on 6 July 2017.   According to the Respondent, the HR Manager wrote to the Complainant, on 12 July 2017, setting out the offer in detail, which was signed and accepted by the her on 19 July 2017.

In conclusion, the Respondent submitted that the Complainant went on certified sick leave between 15 July and 4 September 2017, at which point she availed of annual leave from 5 September to 16 October, before reverting to sick leave on 17 October 2017, after which she did not return to work with the Respondent.

According to the Respondent, they engaged with the Complainant during her absence to support her return to work, sought advice from Occupational Health in relation to this and acted upon same.   It is submitted that the Complainant did not return to work with the Respondent but took up alternative employment which was only advised to the Respondent after the event, prior to which the Respondent understood the Complainant to have been on sick leave.

Complaint Reference CA-00018257-003: (Payment of Wages)

In responding to the Complainant’s complaint under the Payment of Wages Act, the Respondent raised a preliminary point in relation to time limits. According to the Respondent, this complaint, along with all others submitted by the Complainant, was received by the WRC on 4 May 2018. According to the Respondent, the Complainant terminated her employment on 4 December 2017, having been continuously absent from work since 15 July 2017.

In this regard, the Respondent referred to the Workplace Relations Act, 2015, which provides that a complaint or dispute must be referred within six months of the alleged contravention of the legislation, unless, the Complainant can demonstrate a reasonable cause for delay, in which case an extension may be granted up to a maximum of 12 months. The Respondent submitted that as no application for any form of extension had been requested, the Adjudication Officer has no jurisdiction to hear this complaint.

Notwithstanding their position as set out in the above preliminary point, the Respondent went on to submit that, in situations where staff are absent, the replacement staff member is paid at the grade of the work being replaced. According to the Respondent, this is a long-standing practice, as staff work across different grades.

In conclusion, the Respondent submitted that the Complainant was responsible for rostering and payroll returns for the staff in her team. It was further submitted that, on occasion, the Complainant would roster herself to cover shifts for another staff member which would be additional to her own contracted hours. According to the Respondent, the Complainant was aware of the practice relating to such payments and had applied same during her employment. It was further submitted by the Respondent that the Complainant never raised an issue in this regard during her employment with the Respondent.

Complaint Reference CA-00018257-004: (Minimum Notice)

With regard to the Complainant’s claim of payment in lieu of notice, the Respondent submitted that the Complainant terminated her own employment, having been on a combination of certified sick and annual leave from July 2017.

According to the Respondent, during her absence from work, the Complainant attended Occupational Health and had attended meetings with her employer regarding her work. It was further submitted by the Respondent that, on 11 December 2017, during a phone call, the Complainant advised the RSM that she was resigning her position with the Respondent, as she had taken up alternative employment. According to the Respondent, the Complainant later confirmed that she was certified fit to return to work on 23 November 2017 and that she had taken up her new employment on 27 November 2017.

The Respondent made specific reference to the timeframe and sequence of events, pointing out that the Complainant had commenced the new employment during a period of time when the Respondent understood that she was on sick leave. It was further submitted that the Complainant did not advise the Respondent that she was resigning until sometime after taking up alternative employment.

In conclusion, the Respondent submitted that there was no requirement to pay notice to the Complainant, as she in fact did not provide any notice, only informed the Respondent of her actions after she had taken up employment and, even then, it was sometime later. Consequently, the Respondent submitted that all statutory payments due to the Complainant in this regard were paid.

Complaint Reference CA-00018257-005: (Organisation of Working Time)

In response to the Complainant’s complaint under this heading, the Respondent refuted the allegations being made. According to the Respondent there was significant engagement with the Complainant, both formal and informal, to support her in her role as manager and to address her concerns regarding staffing and working hours.

According to the Respondent, two different Regional Service Managers had worked with the Complainant during her period of management of the services. It was further submitted that numerous changes were introduced in efforts to support the Complainant manager her workload and routine. As evidence of their position in this regard, the Respondent provided details of the support provided to the Complainant between 9 October 2015 and 15 June 2017.

The Respondent also submitted evidence of the support and engagement provided to the Complainant in relation to working patterns and staffing. According to the Respondent, they costed the possibility of responding to the Complainant’s request to work fully off roster, however, due to budget implications and the serious financial demands on the Respondent’s services, it was not possible to make these changes. Notwithstanding this, the Respondent submits that they worked closely with the Complainant to address the situation.

In particular, the Respondent submitted that the Complainant was advised to delegate work, to address her office space in the service and to engage with IT regarding computers etc. The Respondent further submitted that despite all of these issues having been addressed with the Complainant they were, unfortunately, never acted upon. According to the Respondent, a common theme emerged whereby the Complainant felt she had no alternative but to do the work herself and that as the most qualified person in the medical/nursing area the burden of the work was fall to her. The Respondent submitted that in such circumstances there is very little an organisation can do.

According to the Respondent’s submission, despite the supports provided to and the engagement with the Complainant, she emailed the RSM on 30 April 2017 stating that she had made up her mind to step down from one year. The Respondent submitted that the RSM met with the Complainant on 3 May 2017 to discuss this request. According to the Respondent, the delegation of tasks was again discussed with the Complainant. The Respondent stated that, while it was made clear to the Complainant that she was not expected to do everything herself, she felt that things would not be done correctly if she did not do them herself.

The Respondent further submitted that, following this meeting, the Complainant wrote to the RSM, formally requesting that she be allowed to step down for one year at least, but, if this was not possible, then she wished to step down permanently.

Complaint References CA-00018257-006/CA-00018257-007: (Organisation of Working Time)

The Respondent submitted that the issue in relation to breaks, particularly those related to sleep overs, is being addressed under the European Working Time Directive at national level between Trade Unions, Employers in the Intellectual Disability sector and the HSE. According to the Respondent, the overarching group are focusing on sleep overs and working time and have agreed to park rest breaks for the present.

The Respondent submitted that, while acknowledging that staff do not have official rest periods during these shifts, they have an opportunity to take their breaks within working time and there are always a number of staff on duty at one time. The Respondent further submitted that, as manager of the Service, it is up to the Complainant to organise rest breaks for her staff and herself. Consequently, the Respondent submits that Section 3 (2) of the Organisation of Working Time Act, 1997, applies in the Complainant’s case.

Complaint Reference CA-00018257-008: (Organisation of Working Time)

In response to this element of the Complainant’s complaint, the Respondent provided documentary evidence in relation to her hours worked covering the year 2017 to the termination of her employment. According to the Respondent, this evidence supports the review that no breach of the Act has taken place.

Complaint Reference CA-00018257-009 (Unfair Dismissal)

In response to the Complainant’s claim of unfair dismissal, the Respondent made the following submissions:

Firstly, the Respondent submitted that it is untrue and unfair of the Complainant to say that she was ignored and that she tried in vain to get her employer to do something. According to the Respondent, as far back as March 2016, the then RSM and HR Officer met with the Complainant and made efforts to support in managing her time off roster, in what she could delegate to others, how she should do this and in recruiting extra staff for the service. The Respondent submitted that between March and June 2016 four new staff were recruited. In addition, it was submitted that the roster was reviewed in February/March 2016 and changed from an unmanageable six-week roster to a more manageable three-week roster.

Secondly, with regard to the issue of the internal investigation into complaints against two colleagues and the subsequent processes, both internal and external, which ensued, the Respondent submitted that the Complainant was kept briefed as much as possible in the circumstances. However, it was deemed inappropriate to have the Complainant attend the WRC Adjudication Hearing as she was the person who made the original allegations against the two staff and, as would be normal practice, the Respondent would be represented at such forums by the RSM and the HR Manager.

Thirdly, the Respondent submitted that during her absence on sick leave, as is the normal practice in the organisation, the Complainant was sent for an Occupational Assessment on 7 September 2070. It was further submitted that the Occupational Physician deemed that, following the expiry of the medical certificate from her own doctor, she was fit to return to work. It was further submitted that the Respondent met with the Complainant, on 3 October 2017, to discuss a return to work and the need for her to take some annual leave.

According to the Respondent, the Complainant agreed to take some annual leave before returning to work. It was further submitted that, at this meeting, the Complainant indicated that she wanted to come back to her old job. The Respondent submitted that it was explained to the Complainant that this was not possible as, having requested to step down from the SCL role and having accepted the SCW position on 19 July 2017, the SCL post had been advertised and filled in the interim.

The Respondent submitted that it was always their understanding that the Complainant would move to the SCW post when she returned from sick leave. According to the Respondent, the Complainant later advised the RSM that she had been certified as fit to return to work and was resigning, as she was taking up alternative employment. It was further submitted that, following this conversation, the RSM emailed the Complainant seeking her resignation writing.

Fourthly, the Respondent submitted that the Complainant was offered the SCW post at the top point of that scale. According to the Respondent, given that the Complainant would be working a residential roster, she would receive higher pay on 39 hours per week as a SCW then she would working 39 hours per week as a SCL. It was further submitted that she would receive premium pay for hours worked between 8 pm and 8 am, double pay for every hour worked on Sundays, a Saturday premium payment and five hours pay, at her hourly rate, for every sleep over she worked.

In conclusion, the Respondent submitted that the Complainant was fully aware that a report was being advertised and filled. It was further submitted that the Complainant was not taken out of her position, rather she requested to step down from that position. According to the Respondent, having advertised and filled the SCL post, the new person had commenced employment there in July 2017. The Respondent further submitted that, while knowing that the post had been filled, the Complainant did not request to go back to that role until October 2017.

In this regard, the Respondent submitted that the Complainant’s replacement in the SCL post, who had taken up the role in the exact same manner and pattern of working, was not working excessive hours and was appropriately delegating work to staff within the team.

The Respondent submitted that they engaged with the Complainant, acted in good faith and took reasonable steps to accommodate her acting out all of their duty of care to her in her employment. According to the Respondent, it was clear from their engagement with the Complainant that she was struggling in the post. It was further submitted that, while they had supported her through engagement, provided further training and ongoing recruitment of staff, the Complainant continued to struggle in the role.

According to the Respondent, the Complainant was afforded the opportunity to step down when she requested same and this was something which she had done previously during her employment with the Respondent. Consequently, the Respondent submits that the Complainant was not demoted, as she requested the change in her job. The Respondent further submitted that the Complainant was not dismissed as she herself tendered her resignation, after commencing alternative employment, while the Respondent was attempting to engage with her to get back to work.

On that basis the Respondent requested that all of the Complainant’s complaints would be dismissed.

Background and timelines:

Having carefully considered and reviewed all of the evidence adduced for and on behalf of both the Complainant and the Respondent, it is clear that there is serious disagreement between the parties in relation to the key event at the centre of the Complainant’s complaint, i.e. the termination of her employment in December 2017. The Complainant disputes the Respondent’s contention that she resigned her employment, contending, on the contrary, that she was dismissed by the Respondent, as a result of her refusal to accept a demotion imposed upon her by her employer.

For their part, the Respondent contend that the Complainant was neither demoted nor dismissed, but that the termination of her contract resulted from her resignation.

In order to properly assess the validity of the respective positions of the parties in this regard, it was necessary to consider the background and timelines leading up to the eventual termination of the Complainant’s employment.

The Complainant commenced employment with the Respondent on 1 April 2005, in the role of a Social Care Leader (SCL). She had this role for approximately five years until, in February 2010, for personal reasons, she applied for a change of grade to that of Social Care Worker (SCW), which is a non-management grade, below that of SCL. The Complainant’s request in this regard was granted and she operated in the SCW role, for the following 17 months approximately.

In July 2011, the Complainant successfully interviewed for a position of Social Care Leader and was offered a nine-month full-time contract, which commenced on 18 July 2011. In April 2012, the Complainant’s post as a SCL was confirmed as permanent, with effect from 28 March 2012. The Complainant remained in this position until mid-2017 at which time issues arose and/or events occurred which eventually led to the termination of the contract in December 2017.

Having carefully reviewed all of the evidence adduced, it is clear that significant challenges existed in the management of the particular services under the Complainant’s control in the years following the appointment in March 2012. These issues arose, primarily, from a combination of staffing issues, including, rosters, for leave etc and the requirements to implement an Action Plan following a HIQA visit. Matters were also significantly impacted by ongoing Staff Relations issues, including a long Dignity at Work investigation, the outcome of which was appealed to both the WRC Adjudication Services and to the Labour Court.

The evidence suggest that these challenges intensified throughout 2016 and into 2017. Documentary evidence, in the form of emails from the Complainant to senior management in September 2016 and January/February/March/April 2017 was presented. These emails are set out in considerable detail the challenges being experienced by the Complainant in her efforts to manage the service under her control.

Evidence adduced on behalf of the Respondent, shows that, in 2016, 15 Supervisory Support meetings were conducted with the Complainant by her direct manager, the Regional Services Manager (RSM). A further five such meetings took place in the first six months of 2017, prior to the Complainant’s departure on sick leave.

On 30 April 2017, the Complainant sent an email to her RSM advising that she needed to “step down for at least a year”. In addition, the Complainant indicated that she was willing to accept and move elsewhere in the Respondent’s service and also sought a prompt response to her request.

Following receipt of this request, the RSM had discussions with the Complainant on 3 May 2017 in relation to the issues and her request to step down. The evidence indicates that the RSM suggested that the Complainant take some time off before considering the matter further.

On 5 May 2017 the Complainant sent a letter to the RSM, formally requesting to be allowed to step down as the person in charge. In this letter the Complainant stated that, ideally, she would like to stand down for a year, however, if that was not possible, she indicated that she was “happy to step down permanently”. In addition, the Complainant suggested that her position as SCL should be advertised and filled as soon as possible.

At a meeting on 25 May 2017 the RSM advised the Complainant that the organisation was in a position to respond to a request to step down and that a position, as Social Care Worker, had been identified, initially for one year, following which it was hoped to secure a more permanent position for her.

The Complainant went on certified sick leave on 20 June 2017, suffering from work-related stress issues. The evidence suggests that the Complainant went from sick leave to annual leave between 5 September 2017 and 16 October 2017, when she reverted to certified sick leave with effect from 17 October 2017.

On 5 July 2017, the Respondent received a letter from the Complainant’s Trade Union seeking detail in relation to the job being offered to the Complainant. The Respondent provided a response on 6 July 2017, setting out the detail of the position.

On 12 July 2017, the Respondent wrote to the Complainant formally confirming that she was reverting to the role of Social Care Worker, on a full-time permanent basis, initially at a named location other than where she was currently working, but on the basis that they would continue to source another permanent location in the interim. Further, it confirmed the Complainant’s salary details, which were that she would be paid at the top point of the SCW salary scale. The Complainant signed her acceptance of these changes on 18 July 2017 and return it to the Respondent on 19 July 2017.

The Complainant, accompanied by her Trade Union representative, attended a meeting with personnel from the Respondent’s HR Department on 1 September 2017. This meeting was primarily arranged to address concerns which the Complainant had arising from her discovery that a letter, which was particularly critical of her, had been submitted by a witness during the Dignity at Work investigation (referred to above) and which she was unaware of until reference was made to it in a decision issued by a WRC Adjudication Officer who had heard a complaint made by one of the respondents in the investigation.

While this meeting does not appear, from the evidence, to have addressed the issue of the Complainant’s role, it was agreed that she would attend for Occupational Health assessment. This assessment took place on 7 September 2017, following which the Occupational Health Consultant reported that the Complainant was fit to return to work on expiry of the current certificate from her GP.   The OH Report further suggested that the Complainant should “try to return to work in her new role” and “take time and write down reasonable accommodations that her employer can make in resolving ongoing issues”.

A meeting took place on 3 October 2017 at which the Complainant, who was accompanied by her brother, met with the RSM and a representative from HR. At this meeting, the Complainant advised that she wanted to go back to her old role, i.e. Social Care Leader, which she considered she had been “pushed out of”, on the basis that she had not been supplied with the support necessary to do her job and to manage the staffing challenges that existed in the service. The Complainant advised that she was seeking to return to her old post as Social Care leader or alternatively, if she returned to the Social Care Worker role on offer, she would be paid at the SCL grade, on the basis of 39 hours per week.

The evidence suggests that, in response, the management representatives advised the Complainant that the SCL post, which she had vacated voluntarily, had been advertised and filled in the meantime. However, they indicated that they would refer the matter back to senior management and would advise the Complainant accordingly.

On 9 October 2017, the Respondent’s HR Manager wrote to the Complainant setting out, inter alia, that (a) the request to step down had come from the Complainant herself, (b) agreement in relation to the SCW position had been reached following engagement with the Complainant, (c) following communication with her Trade Union, a job offer was issued and accepted by the Complainant on 19 July 2017 and (d) the Complainant’s previous position of SCL had been filled and was, therefore, no longer available.

In conclusion, the correspondence confirmed to the Complainant that upon her return from sick leave she would be returning to the role of Social Care Worker, as previously agreed with her. The evidence further suggests that in a phone conversation which took place on 13 October 2017, the RSM provided the Complainant with details of her roster for her new role.

By way of letter dated 6 November 2017, solicitors on behalf of the Complainant wrote to the Respondent advising, inter alia, that (a) the Complainant was seeking compensation for “severe and significant personal injuries as a result of working conditions in her role”, (b) the Complainant was considering referring a complaint to the WRC in relation to alleged infringements of the statutory employment rights and (c) her demotion to Social Care Worker grade was not acceptable and, in the event that the Complainant was not allowed to return to her position as Social Care Leader, she would consider herself as having been constructively dismissed from her employment.

A conversation took place on 11 December 2017 between the Complainant and the RSM, in which the latter claims the Complainant informed her that she had sourced alternative employment and was resigning from the Respondent’s employment. In an email to the Complainant, dated 13 December 2017, the RSM referred to the conversation and requested that the Complainant submit her resignation letter so that the paperwork could be finalised. By way of email dated 16 December 2017, the Complainant confirmed to the RSM that she had been certified fit to return work from 23 November 2017 and that she had taken up her “new post” on 27 November 2017. The RSM sent a further email by return again requesting written confirmation of her resignation.

By way of letter dated 22 December 2017, the Respondent’s HR Manager wrote to the Complainant advising, inter alia, that as they understood she had “taken up a new employment outside of [the Respondent]”, they considered that she had resigned from her employment with them. The Complainant’s P45 was enclosed with this correspondence.

Further correspondence issued between the Complainant’s solicitors and the Respondent during January, February and March 2018, without resolution of the matter, which was subsequently submitted as a complaint to the WRC on 2 April 2018.

Based on the above background and timelines, as established from the evidence adduced, I proceeded to consider the Complainant’s complaints as submitted.

Complaint Reference CA-00018257-001: (Industrial Relations)

Having carefully reviewed all the evidence in relation to this aspect of the Complainant’s complaint, it would appear that an issue, pertaining to Dignity at Work, arose in January 2015. A member of staff raised concerns in relation to her working relationship with two other staff members. The evidence suggests that the Respondent proposed to deal with this issue by way of mediation and that all three parties involved agreed to enter the process. The evidence further suggests that the Complainant did not wish to be involved in this matter and, as a result, it was dealt with by the Regional Services Manager (RSM) and the Human Resources Department.

The evidence further suggests that, before the mediation proceeded, the Complainant lodged a number of complaints against the two staff members involved, relating to issues covered by Dignity at Work and Trust in Care/Safeguarding Policies. It is clear from a review of the evidence that the Respondent considered these complaints to be serious and initiated an investigation, undertaken by an external investigator.

The evidence indicates that some of the Complainant’s complaints in this regard were upheld in the investigation and disciplinary procedures ensued for the two staff members involved. The evidence further indicates that the two staff members appealed their sanctions through a combination of internal and external appeals, including a referral, by one of the staff members, to the WRC. I note that the Adjudication Officer’s findings in relation to that complaint included, inter alia, a finding that the disciplinary procedure and the investigation of the complaints made by the Complainant, in the within case, as initiated by the Respondent were flawed and procedurally deficient.

However, notwithstanding the above WRC findings, there is no evidence to support the Complainant’s contention in this case that the Respondent failed to properly investigate any of the issues raised by the Complainant. The Respondent clearly considered the Complainant’s complaints against the two staff members and, as a result, instituted an investigation. In addition, the Adjudication Officer’s commented that: “one would have to conclude that the word of the claimant’s manager [the Complainant in the within case] was preferred from the outset”, gives further credence to the Respondent’s contention that they did action the Complainant’s complaints.

Consequently, having carefully considered all of the evidence adduced and the submissions made in relation to this aspect of the Complainant’s complaint, I find that the claim that the Respondent failed to adequately investigate and deal with complaints of bullying and harassment by several members of staff against the Complainant is not well founded.

However, another issue arose during the investigation of the Complainant’s complaints against the two staff members, which also forms part of her within complaint. This relates to an updated, unsigned witness statement, apparently submitted to the Investigator during the investigation into the aforementioned complaints. The evidence indicates that this statement was not brought to the attention of the Respondent during the course of the Investigation. It further appears that the Investigator did not interview the witness concerned and there is no evidence to suggest that the content of the statement was considered or referred to in the investigation

The evidence indicates that the Respondent only became aware of the existence of the witness statement when it was produced by a Trade Union representative, for the two staff members involved in that investigation, at a disciplinary meeting in late 2015/early 2016. According to the Respondent’s submission, given the nature of the statement and the fact that it solely related to an investigation, which by that stage, had concluded, no action was taken in relation to the statement and, more significantly, the Complainant was not advised as to its existence.

It appears that the Complainant was unaware of the existence of the statement until she read reference to it in the Adjudication Recommendation into the staff member’s complaint, which issued on 28 July 2017. The Complainant is contending, in the within complaint, that the Respondent should have brought the statement to her attention when they became aware of it and taken appropriate steps to deal with the serious allegations contained therein.

Having carefully reviewed all of the evidence, I am satisfied that, irrespective of when or how the existence of this statement became known to the Respondent, it was at minimum, incumbent on them to bring the matter to the attention of the Complainant and, having done so, engaged with her in relation to how best to deal with it at that stage. In this regard, I find that the Respondent’s failure to do so amounts to an infringement of the Complainant’s right to natural justice.

Given the significant time that has passed since the statement was first issued or indeed since it came to the attention of both the Respondent and the Complainant and given the fractious industrial relations environment that resulted from all those issues, I am of the view that it would serve no purpose to undertake any kind of formal investigation of the witness statement at this stage.

However, notwithstanding this view, I consider that it would be appropriate for the Respondent to ensure that any reference to the statement or the allegations contained therein would be completely removed from the Complainant’s Personnel File with the Respondent and that an appropriate communication would issue to the Complainant confirming that this had been done and that it had no adverse impact on her professional representation.

In addition, I am also of the view that given that this represents a significant breach of the Complainant’s right to natural justice, the Respondent should consider making an appropriate compensatory payment on foot of this breach and the upset/distress caused to the Complainant as a result.

Complaint Reference CA-00018257-002: (Industrial Relations)

Having carefully reviewed all the evidence and considered the submissions made by on behalf of both parties in relation to this element of the complaint, it is clear that the working environment in the services for which the Complainant was the manager was indeed challenging, particularly in the years 2016/2017. In addition, it is clear that the employee relations issues which arose in the workplace added significantly to the challenges and complexities in existence in the workplace, from both the perspective of the Complainant and the Respondent. These issues commenced in April 2015, when the Complainant raised complaints against two members of staff and continued, in one form or another until the issuing of the WRC Recommendation in July 2017.

There is clear evidence from the Complainant’s submission that she was endeavouring to carry out her role, not just on a day-to-day basis, but to implement strategic changes that were also required in the service. It is the Complainant’s contention that her regular requests for assistance and support were not responded to by the Respondent.

However, there is also significant evidence from the Respondent that they engaged on an ongoing basis with the Complainant in an effort to assist her in the management of the services. Based on this evidence it is difficult to conclude that the Complainant’s contentions in this regard are well founded. The evidence of formal supervision and other forms of engagement, particularly in 2016 and the early months of 2017, would indicate that the Respondent was endeavouring to assist/support the Complainant in her role as manager of the services.

It is further noted that in many cases the advice/instruction from her line manager, relating to such issues as the delegation of tasks and limiting the numbers of staff allowed on leave at any one time were clearly not implemented by the Complainant. In addition, there is also evidence to suggest that the Complainant held a strong view that she was the only person who could properly undertake many tasks and, as a result, may have increased the pressure on herself in such circumstances.

Therefore, while fully accepting that the Complainant’s position as manager of the service was indeed challenging, I find that the evidence does not support her contention that the Respondent failed to engage with our support her in this regard.

Based on the evidence adduced in relation to the Complainant’s contention that she was unreasonably demoted when she brought matters to the Respondent’s attention, I find that the Complainant was not demoted but rather was facilitated by her employer when she made a formal request to step back from her managerial role in May 2017. This request was facilitated only after direct engagement with the Complainant and correspondence with the Trade Union representative. The detail in relation to this process is clearly set out under Complaint Reference CA-00018257-009: Unfair Dismissal below.

Consequently, taking all of the above into consideration, I find that the Complainant’s complaint under this heading is not well founded.

Complaint Reference CA-00018257-003: (Payment of Wages)

In response to the Complainant’s complaint under the Payment of Wages Act, the Respondent raised a preliminary point in relation to time limits and contended that, as the Complainant’s last day at work was 15 July 2017 and the submission of a complaint to the WRC was for May 2018, there is no jurisdiction to hear this complaint.

With regard to timeframes Section 41 (6) of the Workplace Relations Act, 2015, states as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Subsection (8) as referred to above, states as follows:

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

In relation to the within case, I am satisfied that the Complainant’s complaint was presented to WRC on 2 April 2018, which, given that she had not been at work since 15 July 2017, is clearly outside the time limit set out in Section 41 (6) of the Act above. However, were the provisions of subsection (8) to apply the complaint would fall within the statutory time limit.

Consequently, the issue for consideration here is whether “reasonable cause” has been shown for an extension of time. The Labour Court in their many decisions in this regard have adopted an approach in line with that taken by the Superior Courts when considering whether time limits should be extended for “good reason” in judicial review proceedings pursuant to Order 84, Rule 21 of the Rules of the Superior Courts 1986.   Such an approach was held to be correct by the High Court in the case of Minister for Finance v CPSU & Others [2007] [18 ELR 36]

In particular, in the case of Cementation Skanska (formerly Kvaerner Cementation) v Carroll [DWT0338],the Labour Court established a test for deciding if an extension should be granted for “reasonable cause” when it set out as follows:

It is the Court’s view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The Claimant’s failure to present the claim within the six month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

It is clear from the various authorities, that the onus is on the Complainant to identify the reason for the delay and to establish that the reason would justify the application of the six-month extension.   With regard to the within case, I am satisfied that the Complainant’s last day at work was 14 July 2017. Therefore, I am satisfied that if a contravention of the Act has taken place, the last date on which such a contravention could have occurred was 14 July 2017. Clearly, the Complainant’s submission of a complaint to the WRC on 2 April 2018 was outside the statutory time limit. As no reason was provided by the Complainant, which might explain the failure to present the complaint within the specific time limits, I find that the extension provided for in Section 41 (8) is not applicable in the circumstances.

Based on the above, I therefore conclude that I have no jurisdiction to hear the Complainant’s complaint under the Act.

Complaint Reference CA-00018257-004: (Minimum Notice)

It is the Complainant’s contention that she is entitled to minimum notice as per the 1973 Act in relation to termination of her employment. The Respondent contends that as the Complainant terminated her own employment, without any notice to her employer, there is no requirement on the Respondent to pay notice.

Based on the conclusions, as set out in detail below under the Unfair Dismissal complaint (CA-00018257-009), I find that the Complainant’s employment was, in effect, terminated by the Respondent. Consequently, I find, therefore, that, in line with Section 4 (2) (d), the Complainant is entitled to 6 weeks’ notice on termination of her employment and I find in her favour in this regard.

Complaint References CA-00018257-005/006/007/008: (Organisation of Working Time)

The Complainant submitted four complaints, as referenced above, under the Organisation of Working Time Act, 1997, in relation to penalisation, daily rest period, rest breaks and maximum permitted hours.

In line with the considerations and relevant authorities as referred to above under the Payment of Wages complaint (CA-00018257-003), I find that the Complainant’s complaints in all cases were submitted outside the statutory time periods as set down under Section 41 (6) of the Workplace Relations Act, 2015. In addition, no reason was provided by the Complainant, which might explain the failure to present the complaints within the specific time limits. Consequently, I find that the extension provided for in Section 41 (8) is not applicable in the circumstances.

Based on the above, I therefore conclude that I have no jurisdiction to hear the Complainant’s complaints under the Act.

Complaint Reference CA-00018257-009: (Unfair Dismissal)

Section 1 of the Unfair Dismissals Act, 1977, defines “dismissal”, in relation to an employee, as either of the follows:

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(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 the within case, the Respondent is contending that the Complainant was not dismissed but, instead, resigned from her employment. The Respondent’s position in this regard is primarily based on the following factors:

1.       The Complainant verbally informed her line manager that she had secured alternative employment and was, therefore, resigning from the Respondent’s employment.

2.       On being certified fit to return to work, the Complainant did not return to work with the Respondent but commenced employment with a different employer.

The Complainant disputes the contention that she informed her line manager, in the phone conversation 11 December 2017, that she was resigning her employment. The Line Manager’s contention, in this regard, derives some credibility from the follow-on email she sent the Complainant on 13 December 2017, in which she makes reference to the conversation of two days earlier and requests the Complainant to “please send on your resignation letter to me as soon as possible so we can finalise your paperwork”. This reference would, in my view, on the balance of probability, suggest that it is more likely than not that the conversation in relation to resignation, as contended by the Line Manager, actually took place.

This view is further underpinned by the Complainant’s response to the Line Manager’s email. In an email sent on 16 December 2017, the Complainant merely references the dates on which she was certified to return to work and on which she took up employment with the new employer. It is, therefore, noted that the Complainant is silent in relation to the matter of “resignation”, despite having been requested to submit her resignation. Clearly, this was an opportunity for the Complainant to clarify the situation in relation to resignation and, indeed, if necessary, to correct any misunderstanding the Line Manager may have had, in that regard, arising from the conversation on 11 December 2017.

Notwithstanding the fact that the oral evidence of the Line Manager when combined with a reasonable interpretation of the subsequent email communication might support the contention that the Complainant had verbally advised that she intended to resign, there is no evidence to show that she confirmed this view in writing at any stage. In fact, the Respondent’s letter of 22 December 2017, confirms that no letter of resignation was received.

It is further noted, that while the Complainant’s solicitor’s letter, of 6 November 2017, indicates that, failure by the Respondent to return her to her original position of Social Care Leader, would result in the Complainant considering herself to have been constructively dismissed from her employment, a position which would have required her to have resigned. However, when the Complainant’s complaint was submitted to the WRC it was a claim for unfair dismissal, under Section 8 of the Unfair Dismissal of Act, 1977.

Consequently, based on the above and, taking into account the Respondent’s letter of 22 December 2017, I find that the Complainant’s employment was terminated by her employer and, consistent with definition (a) from Section 1 of the Act above, I conclude that termination of the Complainant’s employment must, therefore, be construed as a dismissal. Having reached that conclusion, it was then necessary to consider whether that dismissal could be deemed as fair in line with the provisions of the Act.

Section 6 of the Act sets out the provision in relation to the dismissal of an employee as follows:

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6 (4) (b) of the Acts refers to the conduct of the employee as being a factor to be considered when assessing the fairness or otherwise of a dismissal when it states that:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (b) the conduct of the employee,

Finally, Section 6(6) clearly places the burden of proof on the employer to establish that a dismissal was not unfair when it states:

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

The combined effect of the above sections of the Act require me to consider whether or not the Respondent's decision to dismiss the Complainant, in the circumstances that existed at the time, was reasonable in the circumstances. It is well established in case law that it is the role of the Adjudicator in such cases, to consider the reasonableness of the Respondent’s decision, in the context what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.

Having reviewed all of the evidence adduced, I am satisfied that the Respondent’s letter of 22 December 2017 to the Complainant is the letter of termination. It is clear from this letter that the Respondent’s decision to terminate the employment was based on the fact that the Complainant had taken up alternative employment outside of the Respondent’s organisation. It was also clear from that letter, that the Respondent understood that the Complainant was effectively resigning from their employment.  

Notwithstanding the dispute which has subsequently arisen in relation to the Complainant’s alleged confirmation, in her phone conversation with her Line Manager on 11 December 2017 that she was resigning, the circumstances surrounding the Respondent’s decision to terminate must be considered.

As set out in the detailed background above, the Complainant approached her line manager on 30 April 2017, advising that she wished to step down from her position, for at least one year. The evidence adduced clearly shows that this request prompted discussions between the Complainant and her Line Manager on 3 May 2017. This discussion which included consideration of the challenges which appears to be the motivation for the Complainant’s request to step down from her position, concluded with the Line Manager requesting that the Complainant take some time off to consider the situation.

The Complainant’s response came by way of letter dated 5 May 2017 in which she formally requested to be allowed to step down from her management role. In this correspondence, the Complainant stated that her preference would be to step down for a year, but in the event that this was not possible, she stated that she was “happy to step down permanently”. In addition, the Complainant suggested, in this letter, that her position “be advertised and filled as soon as possible”.

The evidence further suggests that having considered the Complainant’s request to step down, the Respondent confirmed, as a meeting on 25 May 2017, that they were in a position to offer Social Care Worker post in one of their other locations. The evidence also shows that by way of letter dated 5 July 2017 the Respondent received a request from the Complainant’s Trade Union, seeking clarification with regard to the position on offer to her. The Respondent replied in detail by way of letter dated 6 July 2017 and there is no evidence to suggest that there was any further contact from the Complainant’s Trade Union in this regard. Consequently, it would be reasonable for the Respondent, in such circumstances to assume that they had no objection with regard to the offer being made to the Complainant.

By way of letter dated 12 July 2017, the Respondent formally offered the new role to the Complainant. This letter set out the detail, including salary, pertaining to the Complainant’s new role and requested that she confirm her acceptance of same by completing and returning and attached acceptance form. The evidence shows that the Complainant duly signed the letter of acceptance on 18 July 2017, which was returned to the Respondent following day.

On 3 October 2017, the Complainant, accompanied by her brother, met with the Regional Services Manager and a representative from HR at this meeting, the Complainant requested that she be allowed to return to her old role as Social Care Leader (SCL), when she returned from annual leave on 16 October 2017. In the event that this was not possible, the Complainant requested that she would be paid at the SCL grade in her new Social Care Worker post. By way of letter dated 9 October 2017, the Respondent’s Human Resources Manager wrote to the Complainant, setting out in detail the circumstances leading to the offer of the new post, the fact that all post had now been filled and that it was not possible to “red circle” her in her new role of Social Care Worker.

The evidence shows that the Complainant converted from annual leave to sick leave on 17 October 2017. As far as the Respondent was concerned, the Complainant remained on sick leave and they only became aware that this was not the case during the phone conversation which took place on 11 December 2017 and in subsequent emails that followed this conversation.

The evidence in this regard clearly indicates that when the Complainant was certified fit to return to work on 23 November 2017, she did not advise her employer of this fact or return to their employment. Instead, she commenced employment with a different employer without advising the Respondent of same.

Having carefully reviewed all the evidence adduced and submissions made, I am satisfied that the Complainant formally sought to step down from her management position and that this was duly accommodated by her employer. I am further influenced in my views, in this regard, by the fact that a previous request from the Complainant to step down in 2010 had also been and accommodated by the Respondent. The evidence suggests that the terms on which the 2010 stepdown operated were similar to those applying in relation to the 2017 stepdown. While the evidence indicates that, following the 2010 stepdown, the Complainant regained a management position, some 15 months later, it is clear that it occurred following interview for a particular position at that time.

Taking all of the above into consideration and based on the evidence adduced, I am satisfied that the Complainant sought and accepted the step down to Social Care Worker grade. I am further satisfied that the Complainant was fully aware of the terms and conditions applying to her new grade when she accepted same on 18 July 2017.

Consequently, I am satisfied that, in a context where the Respondent had filled the Complainant’s Social Care Leader role with a new appointment and where the terms of her step down were identical to those which applied in her previous request in this regard, the Respondent’s position as outlined in their letter of 9 October 2017 was not unreasonable.

Against that background and in a context where (a) the Complainant failed to inform or connect in any way with her employer when she was certified fit to return to work, (b) she commenced employment with a different employer, without any notification to her own employer, (c) the evidence strongly indicates that she verbally informed her employer of her intention to resign and (d) in response to a request from her employer to provide confirmation of that intention in writing, the Complainant merely confirmed her employment with the new employer and did not inform her employer that she was not resigning, as one might have expected if, as she now contends, that was her position at the time. Consequently, I conclude that the Respondent’s decision, as set out in their letter of 22 December 2017, to terminate the Complainant’s contract, cannot be considered as unreasonable in the circumstances that prevailed.

At the second oral hearing, the Complainant’s legal representative raised an issue in relation to the Respondent’s failure to reply to the letter issued by him to the Respondent, dated 6 November 2017. According to the submission in this regard, certain paragraphs of the letter related to the dispute between the Complainant and her employer and, therefore, should have elicited a direct reply from the Respondent.

In response, the Respondent submitted that as the letter was seeking compensation for damages for personal injuries allegedly caused, it was passed directly to their insurers. In addition, the Respondent submitted that in such cases, when the matter is passed to their insurers, they never respond directly. The Respondent also submitted that, when a further letter, dated 18 January 2018, which dealt directly with the circumstances of the Complainant’s termination, was received from the Complainant’s solicitor, it was duly replied to by the Respondent.

Having carefully considered the evidence and the submissions made by both parties with regard to the Respondent’s failure to respond to the correspondence of 6 November 2017, I conclude that the Respondent’s decision not to respond directly cannot be considered as unreasonable. The Respondent had set out their position in relation to the Complainant’s return to work at the meeting on 3 October 2017 and had confirmed same, in detail, in their letter of 9 October 2017 to the Complainant. In a context where the solicitor’s letter of 6 November 2017 clearly stated that, in the event the Respondent was not willing to change that position, the Complainant would consider that she had been constructively dismissed.

Consequently, in a context where the letter of 6 November 2017 was clearly indicating that the Complainant would be pursuing a case for personal injuries and considered herself to be constructively dismissed, I do not believe that anything turns on the fact that the Respondent passed the letter to their insurers for attention rather than responding directly.

Therefore, taking all of the above into consideration, I find that the Complainant’s claim of unfair dismissal is not well founded and her complaint in this regard is rejected.

Recommendations:

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my recommendations in relation to the Complainant’s two Industrial Relations complaints as follows:

Complaint Reference CA-00018257-001:

Having carefully reviewed all the evidence in this regard, I find that the Complainant’s claim, that the Respondent failed to adequately investigate and deal with complaints of bullying and harassment made against her by several members of staff, is not well founded.

I am satisfied that, notwithstanding the subsequent WRC findings in relation to the investigation and disciplinary procedures initiated as a result of the complaints made by the Complainant against two members of staff, the Respondent initially considered the complaints to be serious and acted accordingly.

However, with regard to the issue of the witness statement which was provided to the Investigator during the investigation of the above complaints, I find that the Respondent was in breach of the Complainant’s right to natural justice.

Consequently, I recommend that the Respondent take any/all steps necessary to ensure that reference to the statement or the allegations contained therein are completely removed from the Complainant’s Personnel File with the Respondent and that an appropriate communication issues to the Complainant confirming that this had been done and that the said statement’s existence had/has no adverse impact on her professional representation.

In addition, I recommend that, in full and final settlement of this element of the Complainant’s complaint, the Respondent pay the Complainant an ex-gratia payment of €6,000 in compensation for the breach of her right to natural justice and for the upset/distress caused to the Complainant as a result.

Complaint Reference CA-00018257-002:

I find that the Complainant’s complaint under this heading is not well founded and is, therefore, rejected.

Decisions:

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I set out my decisions in relation to the remainder of the Complainant’s complaints as follows:

Complaint Reference CA-00018257-003: (Payment of Wages)

I find that, on the basis that the Complainant’s claim under the Payment of Wages Act, 1991, is out of time, I have no jurisdiction to hear the complaint.

Complaint Reference CA-00018257-004:(Minimum Notice)

I find that the Complainant’s claim for minimum notice under the Minimum Notice & Terms of Employment Act, 1973, is well-founded. Consequently, in line with Section 4 (2) (d) of the said Act, I award the Complainant an amount of €7,021.68, representing six weeks salary.

Complaint Reference CA-00018257-005/006/007/008 (Organisation of Working Time)

I find that, on the basis that the Complainant’s four claims under the Organisation of Working Time Act, 1997, are all out of time, I have no jurisdiction to hear the complaints.

Complaint Reference CA-00018257-009: (Unfair Dismissal)

I find that the Complainant’s claim of under the Unfair Dismissal Act, 1977, is not well founded and her complaint in this regard is rejected.

Industrial Relations

Payment of Wages

Minimum Notice

Organisation of Working Time

Unfair Dismissal