Complainant

Respondent

Anonymised Parties

A Health Care Assistant

A Health Care Provider

Representatives

SIPTU

 None

Act

Complaint Reference No.

Date of Receipt

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

CA-00032814-001

09/12/2019

This is a case of constructive unfair dismissal.

The complainant had been employed by the respondent since July 2004 as a Health Care Assistant and initially resigned on July 23rd, 2019 and confirmed this on October 29th.

The reasons are set out in the summary of her case below.

In May 2018 the complainant raised concerns about her work environment with her Director of Nursing and a manager was designated to deal with them. However, a month later nothing had happened, and she wrote again about her workplace safety concerns.

In June 2018 she observed what she considered to be unfairness in how rosters were being drawn up for her grade.

Then, following certain other incidents she went on sick leave in October 2018 and did not return to work and eventually resigned.

The following February she set out a detailed grievance in writing about the behaviour of certain colleagues and asked to be transferred to a different location. She was invited to a meting to discuss the grievance.

This took place on March 11th, 2019, at which she learned that some investigation of her complaint had already taken place. She was asked whether she wished to proceed with her complaint informally or formally.

A few days later she indicated that she wished it to be processed formally.

The revelation that the issues she had raised had already been the subject of some investigation had a seriously adverse reaction on her to the extent that she had to leave her home and live elsewhere.

On May 16th she saw the Occupational Health Practitioner who deemed her not fit to return to work.

Then on June 26th she was surprised to receive a call telling her that in order to process her grievance she would need to provide further details. (There had been a letter dated June 6th which the complainant had not received due to her absence).

As a consequence of this she resigned on July 23rd.

The respondent would not accept the resignation but on August 27th she was asked to fill out the ‘Leaving Form’, which she could not understand and eventually she confirmed her resignation by solicitor’s letter.

She justifies her actions on the basis of the respondent’s failure to process her grievances, despite having sufficient information to do so, or to seek it at an earlier stage. She was left with no alternative but to do so

The respondent says that there is no basis for a constructive dismissal complaint and that the complainant resigned willingly, and despite being advised not to do so.

She went on sick leave in October 2018 with a diagnosis of job-related stress and in February was diagnosed as suffering from depression. A report from her GP in February 2019 noted that the complainant was feeling bullied by staff and management.

In response to this her manager contacted her enclosing a copy of its Dignity at Work policy and inviting her to come back to her when she had read it if she wished to make a complaint.

On Feb 15th the complainant was seen by one of the respondent ‘s Occupational Health Nurses who she told of the history of inter-personal difficulties with her co-workers. The OHN referred the complainant to an Occupational Health Physician (OHP) and an appointment was scheduled for April 4th.

On February 21st, 2019 the complainant submitted ‘a comprehensive complaint’.

The respondent replied on March 4th inviting the complainant (who was on sick leave) to make contact regarding a meeting.

In the meantime, the complainant undertook some investigation into the matters raised on the complaint.

A meeting was arranged for March 11th and it concluded on the basis that the complainant would consider whether she wished to pursue the complaints formally or not.

On March 14th the respondent followed up by phone but at that stage the complainant had not made up her mind but would do so in a few days.

Having heard nothing the respondent contacted her again on March 23rd and the complainant eventually indicated on March 26th that she wished the matter to be formally investigated.

There was a consultation with the OHP on April 4th and again on May 16th at both of which the complainant was deemed to be not fit for work. This was due to be reviewed again on July 18th, 2019.

On May 28th the complaint was sent for screening to HR and further information was sought on June 4th. This included details on the identity of the respondents and it was made clear that the matter could not be further processed without it.

The complainant was sent a reminder on June 6th, and not having replied was contacted by phone on June 26th in the course of which the contents of the letter of June 6th (which the complainant had not received) were explained.

The complainant was again contacted for the information on July 15th but in July 23rd she submitted her resignation. She was contacted by management on August 9th asking her to defer her intention to resign and offered to meet her on August 20th.

The complainant agreed, on August 19th confirming that she would not meet the respondent and a further attempt was made on August 27th to meet her.

It subsequently emerged that the complainant had referred the matter to the WRC on August 19th.

The respondent wrote again on September 25th offering the complainant the opportunity to review her position, but nothing further was heard from her.

There is no basis to the complainant’s assertion that she had ‘no option’ but to leave as a result of her employer’s conduct.

The delay in processing her complaint was initially due to the uncertainty on the complainant’s part as to how it should proceed, and then due to the need to establish the details necessary for the complaint to be investigated. The original complaint as submitted was ambiguous and this had to be clarified.

It should be noted that the complainant was not at work during this period and therefore there was no exposure to any alleged harmful conduct.

The respondent made every effort to persuade the complainant to remain in its employment and had been offered a transfer form the unit in which she worked.

The timeline of events set out in the submissions is largely the same and not in dispute.

This is important because to ground her complaint the complainant needs to establish conduct on the part of the respondent which justifies her breaking her contract of employment

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination by a party of any contract of employment.

It is, after all, a breach of a legally binding contract.

Where an employer wishes to terminate the employment, there must be cause, this must be followed by a fair process and finally, the sanction of dismissal must be within the range of reasonable sanctions in relation to the conduct giving rise to the disciplinary proceedings.

Most complaints arising under the Act follow the termination of the employment by an employer and the three tests set out above will then determine whether the dismissal has been a fair one.

On the other hand, where an employee wishes to terminate the employment it is relatively easy for them to do so by simply giving notice of their intention to do so and then resigning and in most, if not all cases an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal then that is a different matter.

In ‘Dismissal Law in Ireland’ the late Dr Mary Redmond has said (at p340)

There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so true an employee should invoke the employer’s grievance procedures in an effort to resolve his grievance, the duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed: Conway v Ulster bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints

The Supreme Court has said that;

‘The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.’

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered.

Generally, this reference to the employer’s conduct is taken to mean something that is so intolerable as to justify the complainant’s resignation and something that represents a repudiation of the contract of employment.

The EAT has made it clear in a series of decisions and followed by the Adjudication service that failure to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above.

In Patricia Barry-Relph v HSE t/a HSE North West. [2016] 27 E.L.R 268

‘The Tribunal finds that the claimant does not give her employer an opportunity to date with her complaints. The tribunal further notes that the claimant resigned on obtaining alternative employment in January 2014. Her resignation was tendered in circumstances where she failed to any of the several avenues open to her.

And in Zabiello v Ashgrove Facility Management Ltd UD1106/2008 the Tribunal stated;

For a claim of constructive dismissal to succeed the claimant needs to satisfy the tribunal that her working conditions were such that she had no choice but to resign. The tribunal is satisfied that the claimant had difficulties with her line manager. However, for a period of six months she did not attempt to resolve the issue.

This gives s good flavour of the burden of proof that falls on a complainant.

The clock starts ticking in respect of this complaint in February 2019. There was an oral complaint in May 2018, followed by a complaint in writing a month later in June but these were not pursued. In any event they do not fall within the time limits for a complaint.

The complainant went on sick leave in October and the following February submitted what was described in her submission to the hearing as ‘a lengthy grievance letter’; running to six pages of hand-written script.

Ultimately, the case turns on the respondent’s management of this complaint, and whether its conduct; actions or omissions are sufficient to meet the criteria set out in the case law above.

There are three phases to be considered.

In the first, between the submission of the complaint on February 21st and the confirmation of the complainant’s preference for a formal process on March 26th no issue of unreasonable delay arises.

The second phase is between that date and May 26th when the complaint was sent for ‘screening’, some eight weeks. It is also important to look at the outcome of the screening process lest it could be cover for further unnecessary delay.

It was not; the purpose of the response from screening was quite basic in that it sought the identity of any respondents. The email from the screening officer noted that the complainant ‘has not identified who the complaint of bullying is against’.

Then follows the third phase; the complainant was contacted on June 4th, June 6th and again on June 26th. It appears that the complainant was not residing at her normal residence in this period, but no blame attaches to the respondent for that.

Indeed, the only period of delay for which some blame arises is that eight-week period between March 26th and May 26th when the complaint appeared to have lain dormant.

I have read the complaint letter of February 21st, 2019.

There are generalised complaints about co-workers not attending to their duties, or how they treated her (not calling her by her correct name) and while there are some references to sexual harassment it would be hard to discern any prima facie basis for a bullying complaint, let alone the identification of one or more respondents.

In any event, I find that the reaction of the screening officer in seeking to clarify this complaint was perfectly reasonable in the circumstances. The February letter did not represent a basis on which a formal investigation of bullying could proceed.

The complainant’s contribution to the delay must also be considered. She was slow enough to confirm her preference for a formal investigation and was non-contactable when the respondent sought to move the matter forward.

When asked to provide the necessary clarification she actually refused to do so, apparently because she was frustrated with the delay in dealing with her complaint.

The requirements of fair procedure are a two-way street, in that employees against whom a complaint is made have rights in respect of the detail of any accusation they have to answer.

For this reason, the making of a complaint is not something that should be undertaken lightly. The complainant was professionally represented by her trade union at the hearing but had failed to engage its advice at the time of making the complaint. It is hard not to feel some disquiet about the fact that the complainant was actually on sick leave throughout this process, but whether this was a factor in her decision making was not raised at any stage.

The eight-week March to May delay was unacceptable (and this was accepted by the respondent at the hearing) but, taken on its own, and it is the only example of an inadequate response on the part of the respondent, it comes nowhere close to grounding a justification for the complainant’s resignation as a constructive dismissal, especially as the complainant was on sick leave and absent from the workplace.

The complainant relied on the test in Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 where the court held;

‘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 further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.

It will be clear from the facts above that the conduct of the employer does not fall within this ‘contract test’ and the complaint fails.

For the reasons set out above complaint CA-00032814-001 is not well-founded.

Constructive unfair dismissal