Complainant

Respondent

Parties

Siobhan  Cornish

Cucullen Ltd.

Representatives

Denise O'brien Watch Your Back Ireland

 Not present

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039023-001

04/08/2020

The Complainant is a Nurse and alleged she was constructively dismissed.

The Complainant worked as a Nurse from 18/4/2019 to 11/5/2020. She earned 2,000 Euro a month, approximately.

The Complainant worked with a client of the company who requires care from a Nurse and HCA 24 hours a day 7 days a week due to the clients severe health conditions.

The Complainant was asked to come in to the office of where she was working as a Nurse on Wednesday (06/05/2020) for an informal meeting before she was due to start her night shift that same day. The meeting was to start at 19.00 and her shift started at 20.00. At this meeting the Complainants Manager informed her that he had been informed by staff that the Complainants hygiene standards had dropped. The Complainant was confused by this as the only possible issue she was aware of she thought she had clarified. Details of hygiene/medical issues with a Client were supplied but are omitted her for privacy reasons. However, when the Complainant mentioned this she was very clearly told that the client had not said anything and that the issue of her hygiene standards had been brought forward by staff. The Complainants Manager was only speaking in generalities about the fact that her hygiene standards had dropped. When the Complainant asked if she could be told specifics about her hygiene standards she was told that if she was to be given an answer it would make the conversation a formal conversation instead of an informal conversation. The Complainant did not push it beyond that as she thought it was strange that to be given specifics of where a person needs to improve would change the type of conversation being had but she also felt that to discuss it further at that time that she may have compromised her professionalism.

The Complainant arrived in to start her night shift on Thursday (07/05/2020) only to have the client themselves tell her that she was being let go because they did not feel comfortable with her working with them anymore. They told the Complainant this in front of the Nurse who was doing the day shift and that the Nurse from the day shift was staying on duty until the person who was coming in to cover the Complainants shift arrived.

On Friday morning (08/05/2020) the Complainant had a text from the office manager asking when would be a good time to call as well as a missed call. The Complainant then received an email asking if she could come into the office to talk to her as she had been given a report on what had happened the previous night and that they were expecting the Complainant to come in to do the shift she had been rostered for that night. The Complainant got in contact with her Manager via phone call as she did not feel comfortable going in to the office as well as she was outside the allowed travel limit for necessary journeys. The Complainant explained to her Manager that she did not feel comfortable coming in to do that shift as well as the fourth night shift she was due to do that week because of what the client had said to her the previous night. The Manager asked if she would be willing to hand in her resignation and to give them one-weeks notice which the Complainant did not agree to. The Complainant also stated that she was surprised to arrive in that morning to be told that the client had said what he had said to her so soon after having the conversation between her Manager.

The Complainant received a follow up email saying that the Manager would look into the claims she made about her dialogue particularly in regards to the client saying that she was being let go. The Complainant was also asked to come into the office for a meeting on Monday (11/05/2020) at 15.00 to discuss the situation. The Complainant do not feel comfortable to attend that meeting as well as it meaning she would have to travel outside the limits of what Nurses are allowed given the current climate. The Complainant did not respond to that email as she wanted to seek advice on how to proceed from where things currently stood. The Complainant refused to attend the meeting and asked for copies of the complaints made against her in writing which were not provided. The Complainants Representative had been asking for a meeting for this information since the 23rd of June and first of all Annual Leave was the issue, and they no reply since the 23rd of July despite trying to set up a meeting and the Complainant felt that she have no option but to leave her position. On trying to resolve this matter the company have failed to set a meeting since to review her grievance and the Complainant felt she could not return to work.

The Complaint was lodged with the WRC on August 4th 2020 and identified the Respondent trading as Home Care Group with an address as Cucullen Ltd, Lakeside Park, Loughrea, Galway.

The Respondent was notified of the Complaint by the WRC and this post was returned to the WRC on September 25th 2020.

The Parties were notified on May 27th 2021 of a Hearing into the Complaint on June 18th 2021. The letter to the Respondent was returned to the WRC on June 3rd 2021.  Following correspondence from the WRC the Complainant Representative confirmed the correct Respondent name was Cucullen Ltd, however no address was confirmed at the time. On June 9th the WRC received notice from An Post that the post from the WRC was refused by the named Recipient.

The Hearing scheduled for June 18th 2021 was cancelled by the WRC on June 10th 2021 due to lack of confirmation of the Respondent address.

On July 1st the WRC wrote to the Complainant Representative asking they confirm the legal name and address of the Respondent.  This was confirmed by the Complainant Representative with supporting data on July 14th 2020. The WRC again contacted the Respondent and the post was returned marked “refused”.

The Respondent was notified of the above Hearing by email and post on October 12th 2021 and the post was returned by An Post marked “refused”.

The Respondent did not attend the above Hearing.

A Complaint was received by the Director General of the Workplace Relations Commission on August 4th 2020  alleging that her employer  contravened the provisions of the Unfair Dismissals Act 1977 in relation to her. The said complaint was referred to me for investigation. A Hearing for that purpose was held on November 26th 2021. The Respondent was named in the complaint form as Cucullen Ltd, trading as the Homecare Group.  There was no appearance by or on behalf of the Respondent at the Hearing. I am satisfied that the said Respondent was informed in writing of the date, time and place at which the Hearing to investigate the complaint.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where conduct of the employer amounts to a repudiatory breach of the contract of employment an employee could be entitled to regard herself as having been dismissed. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332it was held by the Employment Appeals Tribunal that, to meet this test “an employer must be “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”

Alternatively, a line of authorities has established a reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test to substantiate a complaint of unfair dismissal. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer.

Similarly, a line of authorities has established that an employee who seeks to rely upon the Act must demonstrate that she also behaved reasonably in concluding that she is entitled to terminate her employment. In particular, the authorities make clear that an employee must seek to utilise the available grievance procedures in the employment before terminating her employment or else demonstrate why such a course of action would not have been reasonable or practicable.

In Beatty v Bayside Supermarkets UD 142/1987for example, the Employment Appeals Tribunal held: “The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

The Complainant, in her submission to this Adjudicator, set out a narrative describing alleged statements, behaviours and actions of a number of people to support her contention that she was left with no alternative but to resign her position. Due to the non attendance of the Respondent, the evidence of behalf of the Complainant was uncontested. The Adjudicator could find no reason to impugn the evidence tendered on behalf of the Complainant.

Having regard to the written and oral submissions of the Complainant the Adjudicator concludes that the Complainant was unfairly constructively dismissed. The Adjudicator has some concerns as to why the grievance procedure was not more fully utilised by the Complainant prior to resigning however the circumstances, as told by the Complainant, may have rendered the use of the Grievance procedure futile.

The applicable law

Unfair Dismissals Act, Definitions, Section 1

‘dismissal’ means……..

(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,…..

Redress for unfair dismissal.

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances

a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. (End of Act).

The matter for the Adjudicator to consider is whether the situation warranted the Complainants resignation in accordance with the standard set out in s.1 of the Act, as quoted above.

As outlined above there are two tests for determining if a constructive dismissal has occurred. The first test is the ‘Contract Test’. In considering this test the Adjudicator has to consider if a term of an employee’s contract was breached by the actions of the employer such as to make it reasonable for an employee to determine that the contract had been terminated.

The second test is the ‘Reasonableness Test’, in which there is a burden of proof on a Complainant to establish that the behaviour of an employer was so unreasonable that it was reasonable for the employee to terminate their contract of employment.

It is on the latter test that the Adjudicator has focused in assessing the circumstances of the instant case. It is well established in law that in a claim by a Complainant, which is assessed under the Reasonableness Test , it is usually necessary for the Complainant to display that they have exhausted all internal procedures for dealing with complaints before resigning from their employment. As the Employment Appeals Tribunal put it in Travers v MBNA Limited (UD720/2006)‘it is incumbent for an Appellant to utilise all internal remedies’, something that was set out clearly in the earlier case of Conway v. Ulster Bank (UD474/1981).  Ordinarily, therefore, an employee, who has not exhausted all internal procedures is unlikely to find acceptance that they have been constructively dismissed. However, as outlined above this use of the Grievance procedure in this case would probably have been futile so this issue is rendered moot in this instant case.

The Adjudicator is clear that the behaviour of the Respondent in not dealing with the Complainant with not providing clarity of information, discussing her situation with a Client prior to informing the Complainant that she  would no longer be working with the Client, lack of clarity of any work related issues and seeking the Complainants resignation amount to unreasonable behaviour such that it was reasonable for the Complainant to resign from her employment.

The Complainant was out of work for 5 months and had a loss of 2,000 Euros a month. She advised she could not seek to mitigate her losses as she was on stress medical certification.

Based on the uncontested evidence of the Complainant I find she was unfairly dismissed and award the Complainant 10, 000 Euros for the breach of the Act.

Unfair Dismissal