FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : THE CHESHIRE FOUNDATION IN IRELAND CHESHIRE IRELAND (REPRESENTED BY BRENDAN MCCARTHY, STRATIS CONSULTING) - AND - PAMELA MARRAY (REPRESENTED BY TIERNAN LOWEY B.L. INSTRUCTED BY WILKIE AND FLANNAGAN SOLS) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S). ADJ-00015303 CA-00019923-001. The Claimant had been employed by the Respondent from November 2010 until March 2018 when her employment terminated. Background The Claimant was employed by the Respondent as a care support workeruntil she resigned from her employment on 8thMarch 2018. The Claimant contends that she was constructively unfairly dismissed An incident is alleged to have occurred with a service user in August 2016. As a result of that alleged incident the service user asserted to the Respondent that he did not wish the Claimant to provide support to him in his home. A series of meetings took place between the Respondent and the Claimant between September and October 2016 wherein the Claimant was encouraged to raise a grievance through the grievance procedure in place in the employment. In mid-October she was advised that her work rota would not continue. The effect of that development, if implemented, would be to reduce her hours of work significantly and consequently her earnings. An alternative proposal was outlined whereby the Claimant could take up duty at another facility of the Respondent in Dublin while maintaining her earnings and hours. The Claimant was absent because of illness from mid-October 2016. In April 2017 the Claimant formalised her grievance through the grievance procedure in place in the employment. A grievance hearing was held in May 2017. At the same time the Claimant became fit to resume work and she so advised the Respondent. The Respondent however advised her that she could not return to work the hours she had previously worked. She did not return to work. The Claimant put forward proosals as regards alternative rota arrangements which would have protected her earnings. These proposals were rejected by the Respondent in June 2017. The outcome of the grievance hearing convened in May 2017 was conveyed to the Claimant in September 2017. In the intervening period she remained out of work. Her grievance was not upheld. An appeal hearing was held in October 2017 and in December 2017 the Claimant was notified that her appeal had failed. In mid-January 2018 the Claimant advised the Respondent that she believed she had been constructively dismissed and advised of an intention to refer the matter to the Workplace Relations Commission. She resigned her employment on 8thMarch 2018. Summary position of the Claimant. The Claimant submitted that on 30thAugust 2016 she was called to a meeting with her manager. At that meeting she was informed that a service user had made a complaint against her. Her manager advised her that the service user was refusing to be supported by the Claimant. She was advised that the Respondent had removed her from the service user’s support team without engagement with her. The Claimant was permitted to work her normal rostered hours for a further month. She was advised in October 2016 that the service user had refused to engage in mediation, continued to refuse to be supported by the Claimant and had advised the Respondent that he would not engage further on the matter. On 12thOctober 2016 the Claimant was presented with an alternative roster which would avoid her having to work with the service user who had made the complaint. That roster, which was described on the 13thOctober by the Respondent as a sample roster, involved the working of split shifts and a significant reduction in earnings. As an alternative to that option, the Claimant was invited to consider working in another location of the Respondent which would involve travelling for one hour and fifteen minutes each way to attend and return from work which represented a very significant increase over her previous daily travel time. The Claimant was certified unfit for work through stress related illness with effect from 13thOctober 2016. On 24thOctober the Claimant was advised by the Respondent that her then current shift pattern would cease on 30thOctober. She remained on sick leave thereafter. In February 2017 the Claimants’ rate of sick pay was reduced by the Respondent in accordance, according to the Respondent, with the sick leave policy of the Respondent. The letter advising the Claimant of this development also advised her that the service user had made another allegation against the Claimant which must be referred to the HSE. No details of this complaint were provided to the Claimant. In April 2017 the Claimant lodged a grievance in accordance with the procedures in place in the employment. A grievance meeting was held on 11thMay 2017. At or about the same time the Claimant informed the Respondent that she was fit to resume working. The Respondent refused to provide her with her original roster and asked her to make suggestions for an alternative roster. The outcome of the grievance hearing was conveyed to the Claimant in September 2017. She appealed that decision in October 2017 and, in December 2017, she was advised that her appeal had failed. The Claimant formally resigned in March 2018. The Claimant submitted that the Appellant operated a Complaints Management Procedure which had been developed to safeguard the rights of service users and staff. That procedure makes provision for a multi-stage procedure to be followed when a service user makes a complaint against a member of staff. The procedure allows for local informal resolution efforts, a preliminary enquiry, a formal investigation, a review and an independent review and sets down timelines for the operation of each stage. This procedure was not invoked by the Respondent in the case of the complaint made against the Claimant and consequently the Respondent had flouted its obligation to protect the Claimant. Instead, the Respondent had acted immediately on the complaint of a service user and effected grave changes to the Claimant’s terms and conditions of employment. This denial of a right to a fair complaints procedure deprived the Claimant of an opportunity to maintain her good name. The Claimant at the hearing submitted that, as a care giver, the allegations which had been made against her undermined her professional reputation and the failure of the Respondent to address the complaint in a manner which afforded her an opportunity to defend herself exposed her to significant stress. She submitted that the fact that she had never had the opportunity to address the allegations made against her contributed very significantly to her decision to resign her employment in March 2018. She submitted that the Respondent’s conduct was such as to constitute a unilateral breach of her contract of employment and was so unreasonable as to mean that the Claimant could not fairly be expected to continue in her employment. Summary position of the Respondent. The Claimant provided care support to users in their own homes. Individual service users have the right to refuse any particular visitor, including a carer, entry into their own home. Wherever an issue arises involving a carer the Respondent will engage with the service user in order to secure a solution. Where this is not successful the Respondent will offer mediation. In the case of the Claimant, a service user refused to accept support from her with effect from 30thAugust 2016. The service user’s issue arose from events which allegedly occurred on 28thAugust 2016. The service user had raised issues relating to other carers previously and, in those cases, mediation had been utilised to achieve a solution. In the case of the matter involving the Claimant the service user declined mediation. The Respondent continued to engage with the service user up to mid-October 2016 until the service user, in finality, decided that he would not accept the support of the Claimant and would not engage in further discussion in relation to the matter. The Respondent met with the Claimant on 12thOctober 2016 and put options to her which included working a roster which did not involve the Claimant providing support to the service user who had raised issues with the Claimant. The Respondent also suggested that the Claimant could consider working at another facility of the Respondent. At that meeting also the Claimant was asked to provide alternative suggestions to address the issue which had arisen. The Claimant did make suggestions as to how the matter could be addressed in June 2017 but the proposals she made were impractical and not financially sustainable. The Claimant had, in a letter to the Respondent of 22nd March 2017, indicated that she could see no alternative to her seeking other employment and in that letter she sought a reference from the Respondent. This letter, in the submission of the Respondent, amounted to a confirmation by the Claimant that she intended to resign her employment. In response to that letter the Respondent did, on 28thMarch 2017, provide a reference to the Claimant but also suggested that she should employ the grievance procedure in place in the employment before‘taking the irreversible action to resign’. The Claimant initiated a grievance against the Respondent in April 2017 which related solely to her assertion that a case had to be proven regarding the service user’s original allegation of August 2016 before any alteration to her working arrangements could be implemented. The Claimant’s grievance was dealt with through the internal grievance procedure and ultimately was not successful including at appeal stage. The Claimant’s contract of employment recognises that employment and hours of work depend on service user needs and that changes in terms and conditions of employment will occur. The contract made provision for changes in working hours and in location of work. The Claimant’s engagement with the Respondent’s grievance procedure was a hurdle to overcome for her constructive dismissal claim. She was merely ‘ticking the box’ rather than meeting the burden resting upon her to exhaust all available internal procedures. The Respondent had taken no action to force the Claimant to resign and it was clear that the Claimant had only one intention for a period of time and that was to claim constructive dismissal. The Law Section 1 of the Act defines ‘dismissal’ for the purposes of the Act as 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, or (c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;” Discussion and conclusions.The Court has given very careful consideration to the written and oral submissions of the parties. The Act places a high burden on the Claimant in a constructive dismissal case. In order to succeed in such a complaint, a Claimant must establish that because of the conduct of the employer she was entitled to terminate her employment, or it was reasonable for her to do so. A long line of decisions of this Court, and the Employment Appeals Tribunal before 2015, have established that conduct of an employer which would justify an employee terminating the contract of employment includes a breach of the contract of employment by the employer which goes to the root of that contract or circumstances where the employer’s unreasonable behaviour was such that the employee could not reasonably be expected to remain in the employment. It has also been established in the decisions of this Court and the Employment Appeals Tribunal that a Claimant who contends that she has been constructively dismissed must demonstrate that that she has acted reasonably herself in the circumstances by, for example, availing of the employer’s grievance procedure in order to allow the employer an opportunity to rectify the problem before she feels compelled to resign. Each complaint of constructive dismissal is of course considered on its own merits and on the basis of the circumstances existing in that case but, as a general principle, this Court and the Tribunal have clarified that these are the matters most relevant to this Court’s consideration of complaints of the nature before the Court in the within appeal. The Claimant in this appeal has submitted that the Respondent failed to follow its own procedures in responding to a complaint from a service user. That procedure is set out in the Respondent’s Complaints Management Procedure which is designed to safeguard the rights of service users and staff in such circumstances. The Claimant has also contended that the Respondent, at a date in February 2017, wrote to her to advise her that the service user had made at least one other complaint against her albeit she was not provided with any detail of the nature of that complaint. These contentions of the Claimant were not disputed by the Respondent. She contends that the failure of the Respondent to provide her with an opportunity to address any complaint made against her and, in at least one case to be made aware of the nature of such a complaint at all, caused her much distress and stress as a care worker and left her in a very difficult situation. She further submitted that the Respondent’s response to the complaint made by the service user in August 2016 was to propose to implement arrangements which would either have had a very significant negative effect on her earnings or required her to change her place of employment to another location at a very significant geographical remove from the work location at which she had been employed throughout her career with the Respondent. The Respondent submitted that, having regard to the fact that the service provided to users is provided in their private homes, it had no means available to continue to allocate the care of a particular service user to the Claimant in circumstances where the service user refused to allow her to enter his home or to provide support to him. The implication of that reality in an environment where the number of service users supported by the Claimant’s work location was no more than five in total was such as to mean that significant changes would have to be made in order to continue to deliver a sustainable service. Against that background, it made proposals to the Claimant which she refused to accept. In addition, while she did make proposals which were unworkable for the Respondent, the Claimant failed to engage effectively with the Respondent to find a workable solution to the service implications of the refusal of the service user to be supported by the Claimant. It is common case that the Claimant did, at a considerable remove in time from the date of the complaint made by the service user, raise a grievance which was dealt with through all stages of the internal grievance procedure of the Respondent including an appeal. Having regard to the nature of the Respondent’s services, it is clear that the fact that a service user in an operation of the size of the Respondent’s in the location in question decided to prohibit the Claimant from entering his home or from providing support to him placed a very severe operational challenge before the Respondent. The fact that the service user declined any form of mediation clearly exacerbated the challenge faced by the Respondent in addressing the matter in an operationally or financially sustainable manner. The Respondent made proposals to the Claimant which were unacceptable to her. It is clear also that the Claimant made proposals which were unacceptable to the Respondent. In the event, no mutually acceptable solution to the challenge posed by the decision of the service user was found between the parties. It is not for the Court to take the place of the Respondent in determining which arrangements were operationally or financially sustainable in the circumstances arising from the decision of the service user. It is sufficient to note that the Respondent concluded that no solution could be found which would not have a significant impact on the earnings or the working arrangements of the Claimant. The Court notes that the Respondent has submitted that the contract of employment of the Claimant allowed for a reduction in her working hours or for relocation to an alternative work location. That contention is disputed by the Claimant. In any event, it is clear that a difficulty of the nature which arose had the potential, because of the nature of the service operated by the Respondent, to impact very significantly and negatively on the Claimant’s earnings and working arrangements including her working hours. The Respondent has in place in the employment a procedure to deal fairly with complaints of service users. It is the view of the Court that a reasonable employer dealing with a situation which could result in considerable detriment to an employee, would operate its own procedures in the first instance such that the employee could at least be satisfied that all steps had been taken to fairly address the circumstances and to allow the employee to set out her own account and to have it considered. In the absence of the operation of that internal procedure, the employee is provided with no opportunity to engage fully with the events and decisions which might ultimately be required in order to address the refusal of a service user to be supported by a particular care worker. Indeed, in the view of the Court there is, having regard to the particular nature of the service provided by the Claimant on behalf of the Respondent, a special obligation resting upon the Respondent to ensure that all arrangements in place to safeguard staff and service users are implemented once a complaint is made against a care support worker. In the within appeal, the Respondent failed to operate its own procedure for dealing with complaints from service users at all, but instead moved to propose the implementation of arrangements carrying negative consequences for the Claimant in response to unchallenged allegations as regards the conduct of the Claimant. In all of the circumstances, the Court concludes that this failure of the Respondent to initiate and conduct its own procedure which had been developed to safeguard service users and care staff constitutes conduct of Respondent which was so unreasonable as to mean that, within the meaning of the Act, the Claimant was entitled to terminate her contract of employment. Redress Section 7(1)(c)(i) of the Act, as amended by s.6(a) of the 1993 Act provides: - (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 under section 17 of this Act) as is just and equitable having regard to all the circumstances, or Section 7(2) provides: (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 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, (d) (not applicable), (e)(not applicable), and (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. The Court notes the Claimant’s evidence to the Court as regards her earnings before the termination of her employment and the efforts she made following that termination to secure alternative employment together with her successful efforts to secure relevant qualifications to support her in finding alternative employment. The Court notes that she was ultimately successful in securing employment. Following her dismissal, the Claimant was without work for a period of almost six months and subsequently engaged in work at rates of pay which were less than the earnings she enjoyed in the employment of the Respondent which amounted to €33,000 per annum approximately. The Court takes note also of the submission made by the Claimant outlining her efforts to mitigate her economic loss. The Court measures the compensation which is just and equitable in the circumstances at €20,000. Decision For the reasons set out above the Court decides that the Claimant was unfairly dismissed in that she was entitled to terminate her employment in circumstances as set out in Section 1(b) of the Act. The Court orders that compensation in the amount of €20,000 be paid to her by the Respondent. The decision of the Adjudication Officer is set aside. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
