Complainant

Respondent

Anonymised Parties

A Receptionist / Medical Secretary

A Medical Practice

Representatives

Nathaniel Lacy & Partners, Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00029014-001

13/06/2019

Having taken time out from employment to rear her children, the complainant did a number of courses in preparation for returning to work, including training as a medical secretary. In October 2015, she commenced employment as a relief receptionist in the respondent’s general practice, providing cover for holidays and sick leave for three staff and the practice manager. In 2016, the complainant also took up employment with another doctor in the same town, where she was rostered every Friday and she covered for the absence of one employee.

When she started work in October 2015, the complainant’s hourly rate of pay was €12.50 and this was increased to €14 in July 2018.

The complainant’s last day at work with the respondent was December 19th 2018. She resigned on April 26th 2019.     The complainant claims that she had to leave her job because she was not rostered by the practice manager after December 2018. She claims that the termination of her employment was a constructive dismissal.

In advance of the hearing, the complainant sent a written submission in which she set out her case that she had no choice but to leave her job because of the conduct of her employer. She expanded on her submission in her direct evidence and in response to the evidence of the respondent’s witnesses. Her evidence is summarised in this section.

In October 2018, an advertisement was posted by the respondent in the Supervalu supermarket in the town where the surgery is located, seeking a receptionist to cover holidays. The complainant asked the practice manager if this was her job, and she was told that it wasn’t, that the purpose of the new hire was to “fill the gaps” and to provide “more bums on seats.” A part-time receptionist had left and her hours were given to another part-timer.   In November 2018, a third level student was hired as an extra relief receptionist. The complainant said that advertising for another relief receptionist didn’t make sense to her, because she was doing this job. When the new employee started work, the complainant said that she was offered just one more day’s work in 2018, on December 19th 2018.

The complainant said that she told the practice manager in October 2018 her that she would only be needed for three weeks in the summer of 2019 by her other employer. She said that she never said “no” to work when it was offered by the respondent and that she got more hours in 2018 than she would have got in 2019, after the student was recruited.  

In January 2019, the complainant was asked to be available to work on July 22nd and 29th and August 12th and she accepted these days. In April, she was asked to work on May 9th and she also accepted this offer. At short notice, on Monday, April 22nd, she was asked to work on Tuesday and Wednesday that week because one of the receptionists was sick.   Unfortunately, she was unable to work on those two days because she was already rostered in her other job.   She said that this was the first time that she declined work with the respondent.

On Thursday, April 25th, the complainant made an appointment as a patient with one of the doctors in the practice and, at the end of her consultation, she told the doctor that she had been “shafted” from her job and she asked for an explanation.   She said that the doctor replied that that the job was “more suitable for a student” and that she remarked that she hadn’t been available to cover the roster on Tuesday and Wednesday that week. The student wasn’t available either and the complainant couldn’t understand why the job could be more suited to her, particularly when she had no qualifications for the role.

At this time, the complainant was rostered for a few days in May and in July and August and she knew that the three receptionists and the practice manager would be taking holidays in the summer. One receptionist was planning to be off work for a month. However, she said that she told the practice manager that she had made alternative arrangements for the summer. She said that she did this because she felt she was “being squeezed out for a younger person” and because, so far, she was only rostered for four days in 2019.

On Friday, April 26th, the complainant wrote to the three doctors in the practice. She included a copy of her letter in her documents at the hearing. In the letter, she expressed her dissatisfaction with the recruitment of the student and she described her sense that the practice manager had been untruthful when she told the doctors that the complainant was unavailable for summer work. Concluding her letter, the complainant said that she had secured other work for the summer and she hoped that she could continue to have a patient-doctor relationship with the surgery. She wished the practice well for the future. While her letter did not invite a reply, the complainant wrote again on May 20th seeking a response. On May 30th, one of the doctors replied and said she was sorry to hear about the issues raised by the complainant in her letter. She said she had been an excellent employee and that her hard work was appreciated. The doctor concluded her letter by wishing the complainant well in her current employment and she said that she hoped she would could continue as a patient of the surgery.

The complainant said that she was not dismissed and that she did not officially resign, but she feels that she was left with no option but to consider herself constructively dismissed. She claims that a text message that she received from the practice manager in response to her letter of April 26th was just “a casual text” and not a formal invitation to resolve the issues between them.

The Complainant’s Response to the Submissions of her Former Employer

In advance of the hearing of this complaint, the complainant submitted detailed responses to the submissions sent to the WRC on July 29th 2019, by the practice manager and by one of the doctors. I have taken account of these responses, the most relevant points of which can be summarised as follows:

During 2017, the complainant only covered for holidays and not sick leave.

The complainant always gave priority to requests from the respondent’s surgery over her other job.

As far as the complainant is aware, clinical staff did not cover reception.

When the part-time member of staff resigned in September 2018, the complainant was not offered her hours and they were given to a longer-serving permanent member of staff.   The complainant said that she was “not too unhappy about this.” However, she was unhappy with the decision to recruit an additional relief person to cover holiday leave and she claims that this was “effectively my job.”

The complainant said that she declined the offer on May 2nd 2019 from the practice manager to meet to discuss her grievance, because she had already spoken to one of the doctors who had indicated that the job was more suited to a student and she felt that the decision was “done and dusted.”

The complainant said that she was offered 40 hours for 2019, compared to 286 hours the previous year while the new member of staff was getting all the summer cover for 2019 that she would have been rostered for previously.

The complainant said that her entire schedule for 2019, apart from Fridays, was available to the respondent.

The complainant said that she did not fulfil her commitment to work on May 9th 2019 because she was unwell.  

The complainant claims that the decision to replace her with a student is evidence of a “significant element of age discrimination.”

The complainant argues that the practice manager’s comment that the decision to recruit an additional employee was partly based on the fact that the complainant had commitments to another employer is evidence that she was being replaced.

It was only when she was informed by one of the doctors in April that the job was more suited to a student, that the complainant decided to make herself unavailable for the hours she was offered during the summer. She said that when the “new girl” was offered “all my other hours” she was left with no option but to take the view that she was being constructively dismissed.

The respondent sent a written submission and evidence was given by the practice manager and one of the doctors in the practice, who I will refer to here as “the GP.”

The respondent’s submission states that the complainant was recruited in 2015, as a part-time employee to cover holidays, sick leave and “general cover.” The practice employed three permanent receptionists and one practice manager. Just one of these employees, a receptionist, worked full-time hours.   The part-time employees provided cover for each other when necessary, and the full-time employee sometimes worked overtime. The complainant was offered hours and was free to accept or decline them. She had no fixed hours and, in some months, she wouldn’t be offered any hours.

Although the complainant was available for relief cover, during 2017 and 2018, it was difficult to cover all the hours required. In the summer of 2018, one receptionist was on holidays for a month and another was out sick and the complainant worked a lot of hours.

In 2016, the complainant got a second job providing relief cover for the practice manager in another surgery in the same town as the respondent’s surgery. From January 2017, she worked there every Friday. The respondent had no issue with this commitment.   In September 2018, when one of the part-time receptionists resigned, the other part-timer opted to do full-time hours. As a result, this receptionist wasn’t available to do emergency cover. At the same time, the other two other employees were not available for overtime. The overall effect was that there was no “slack” in the system to provide cover for holidays and sickness, apart from the complainant, who was available on four days a week.

The practice in the surgery is for two receptionists to be on duty together, but the lack of relief staff meant that, on some shifts, one person had to work alone or cover had to be provided by the clinical staff. This meant that doctors weren’t available for patient consultations.   Patients faced delays getting through on the phone and there were also delays in the processing of paperwork and in documenting test results in patient files. In October 2018, a decision was made to recruit another relief receptionist and an advertisement was posted in the local Supervalu supermarket.   When the complainant expressed concerns about this, the practice manager contacted her and told her that there were no problems with her work and that the practice was very happy to have her working there. In recognition of her contribution, she had been given a pay increase in July 2018.

There was no response to the advertisement posted in Supervalu and in November 2018, a student was identified who was available during the summer and school holidays, a period for which the surgery needed cover. It is the respondent’s case that, by recruiting the student, they did not intend to replace the complainant, but to provide additional relief cover. In April 2019, work was available for the complainant during that month, and in May, July and August 2019 and, perhaps more, and also in future years, if she wished to make herself available.

Evidence of the Practice Manager

The practice manager said that in 2018, there were huge difficulties getting cover for the administrative staff in the surgery. She said that because of this problem, she was only able to take one week’s holidays.   She said that a decision was made that more relief cover was required a student was hired and she started work in November 2018. The practice manager said that some of the staff met the complainant for lunch and they said that she was upset about the recruitment of the student. The practice manager said that she phoned her and told her that they couldn’t go through another year like 2018 and that they needed two relief receptionists.

In November 2018, the complainant was rostered for eight hours and in December, the practice manager said that she worked for 28 hours, partly to cover for one of the receptionists who went to Australia on holidays. This is in conflict with the complainant’s evidence that she worked just one day in December 2018.

In January 2019, the practice manager said that she spent some time working on a holiday roster and on January 14th, she sent a text message to the complainant to ask her to work on two Mondays in July and for two Mondays in August. A copy of the text message communication was submitted in evidence. (It turns out that one of the Mondays, August 5th, was a public holiday and the surgery was not open). The complainant replied, “Leave it with me and I’ll get back to you.” On April 18th, the practice manager asked the complainant to work on May 9th, which she agreed to do.   She wasn’t available to work on April 23rd and 24th because she was working in her other job that week.   The practice manager replied telling the complainant that it was no problem that she was committed to working in her other job that week and that she was grateful that she could work on May 9th, signing off her text message with “Hope you’re alright too, it’s hard to do everything, thanks again for that, you’re very good xx.”

The practice manager said that another staff member told her that the complainant was unhappy with the number of hours’ work she was being offered. On May 2nd, she sent the complainant a text message as follows:

“Hi…hope you’re keeping well. I know there has been a few issues lately. Just wanted to clear them up and am wondering are you available to do the hours I messaged you about a few weeks ago. We have always gotten on well and your work has always been great. If you want to meet up that’s no problem to talk about things.”

On May 3rd, the complainant replied and confirmed that she was available on May 9th but that she had made alternative arrangements for the summer and would not now cover the hours that she had been offered in January. On May 8th, she sent a text message to say that she was unavailable on the 9th.

The practice manager said that it is impossible for one person to cover holidays and sick leave for one full-time and two part-time employees and that they needed more help.   She said that she planned to work in the back office on Mondays, and she intended that the complainant would cover the reception on Mondays. This alone would have given her 158 hours in 2019.

The practice manager said that 2019 was just as difficult as 2018 from the perspective of getting relief cover and, although the student was available. In late 2019, they recruited another part-time receptionist, working every Monday.

The practice manager said that she never fell out with the complainant, that she was very good at her job and that she never expected her to resign. She said that they surgery is a nice place to work, people get on well with each other and they all have long service. She said that all the staff were friendly with the complainant. They all went out for dinner at Christmas in 2018 and the complainant got a Christmas bonus.

Evidence of the GP

On April 25th 2019, the GP said that she was informed by one of her staff that the complainant wanted to see her about a medical issue. She said it turned out that she wanted to talk to her about the recruitment of the student as an extra relief person. The GP said that she apologised to the complainant about how the recruitment of the new person was communicated to her and she tried to reassure her that she wasn’t being replaced. She said that she didn’t expect the letter from the complainant the next day, in which it seemed that she was ending her relationship with the surgery. When they got the letter, the GP said that the practice manager sent a text message to the complainant and asked her to meet her.

When asked about her statement that the job is more suited to a student, the GP said that she meant that the extra relief was more suited to a student, who might be off during the summer. She said that they didn’t want to replace the complainant, and that they needed additional help. She said that they could have resolved matters with the complainant and that she appeared to be offended by the reference to a job being suited to a student.   She said that the summer roster had not been drawn up by the time the complainant decided to make herself unavailable. At the end of her evidence, the GP said that even now, in October 2020, they still need extra relief staff.

Constructive Dismissal

The definition of dismissal at Section 1 of the Unfair Dismissals Act 1977 includes the concept of constructive dismissal:

“dismissal, in relation to an employee means -

“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 without giving prior notice of the termination to the employer…”

As a complaint of constructive dismissal, the burden of proof rests with the complainant to show that her decision to leave her job was reasonable in the circumstances that prevailed at the time.

The issue for decision in this case is, taking into consideration the conduct of the respondent in relation to this former employee, can I accept as credible her claim as set out in her complaint form that, “my job was given to a young student that, as far as I know does not have the qualifications or experience that I hold.”

The Reasonableness of the Employee’s Decision to Resign

In her evidence, the complainant said that she was not officially dismissed and that she did not officially resign, but that she had no option but to consider herself constructively dismissed. My sense is that she has interpreted the concept of constructive dismissal as what she described as “being squeezed out” of her job. It appears that she thinks that she was, in some way, surreptitiously dismissed as a result of the recruitment of the student in November 2018. It’s clear that she felt rejected in favour of a younger person, but she did not submit a complaint of discrimination. Leaving that aside, the fact is that the complainant decided not to continue working for the respondent after April 26th 2019, and she confirmed this in her letter of that date. I must therefore consider her decision as a resignation, formal or otherwise.

In October 2018, when the complainant discovered that the respondent intended to recruit another relief receptionist, she expressed her concern about her own job to the practice manager. She was informed that she was appreciated as a good worker and that the purpose of the new person was to ensure that there was more cover available than there had been in 2017 and 2018, particularly during the summer. The complainant got a pay increase just three months previously, when her hourly rate went from €12.50 to €14, so it is apparent that there was no issue with her performance.

The records submitted at the hearing show that the complainant worked the following hours for the respondent between 2015 and 2018:

2015: 73 hours (from October to December)

2016: 503 hours

2017: 142 hours

2018: 288 hours

It is interesting to note that significantly more hours were worked by the complainant in 2016, and that she started doing one day a week with the other medical practice in January 2017, having provided some cover from the previous June. This would indicate that her availability to work for the respondent was somewhat compromised by her commitment to her other job.

The evidence of the respondent is that, by April 22nd 2019, in that year, the complainant was asked to work on April 23rd and 24th, May 9th, July 22nd and 29th and August 12th, equivalent to about 50 hours. She was unavailable on April 23rd and 24th due to her second job, she was ill on May 9th and she declined the offer of work in July and August. I think that it is reasonable to assume that, if she had not resigned, she would have been offered more hours, particularly during the summer months, when more than one employee would have been on holidays at the same time. The respondent’s evidence is that they were under serious pressure for cover, particularly during the summer months and I can see no reason why the complainant would not have been offered hours during the summer, in addition to the new student employee. The respondent’s witnesses said that they recruited another part-time person after the complainant resigned and that they were still short-staffed at the time of this hearing in October 2020.

One of the most seminal legal precedents that addresses the concept of constructive dismissal is that of McCormack v Dunnes Stores, UD 1421/2008. Considering the reasonableness of an employee’s decision to terminate his or her employment, the Employment Appeals Tribunal concluded that:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his or her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make continuation of employment with the particular employer intolerable.”

In her letter of April 26th 2019, the complainant wrote to the doctor with whom she had the consultation the previous day and she set out her dissatisfaction with the recruitment of the student, and with how she felt she was treated by the practice manager. A week later, the practice manager sent a text message to the complainant and invited her to meet her to “talk about things.” The complainant replied that she would work, as she had promised, on May 9th, but that she wouldn’t do the hours she was offered in July and August. She didn’t respond to the offer to talk and, at the hearing of this complaint, she argued that this was “not official.” In view of the “high burden of proof” described in the McCormack v Dunnes Stores case referred to above, it is my view that, if she was serious about trying to resolve matters regarding her hours, this simple overture by the practice manager should have been taken up by the complainant. The text message itself was generous and warm, referring to the fact that “we have always gotten on well and your work has always been great.”      

Having considered all the evidence, I find that the way the respondent attempted to deal with the complainant’s concerns about her job was constructive and reasonable. In October 2018, before the student was recruited, the practice manager reassured the complainant that the objective was to have extra cover, and not to give away her hours. In April, one of the doctors reiterated this and apologised for not communicating better the decision to hire a new person. She said that the extra job was more suited to a student, and not the complainant’s job. In May, the practice manager again contacted the complainant to try to talk about things and to resolve her concerns. It is my view that, rather than assuming that the student would be given her hours, the complainant should have waited until November or December 2019, to assess the situation. At that point, the student would have been employed for 12 months and a proper comparison could have been done to compare the hours offered to the complainant in 2019 compared to 2018. It is unfortunate that she has based her case of constructive dismissal on an assumption that she would be treated unfairly, when there was no evidence to support this.

Findings

As we have noted, the burden of proof required of a complainant in a case of constructive dismissal is a high bar. It’s clear from her evidence that the complainant was unhappy with the relationship with the practice manager, as she stated in her letter of April 26th 2019, “My issue is to do with practice management…” The complainant was perfectly entitled to resign if she wanted to remove herself from what she considered to be an intolerable situation but, by any reasonable standard, her evidence is not substantial enough to qualify as intolerable. To succeed in a complaint of unfair dismissal, a complainant must demonstrate that her employer has inflicted a fundamental breach on her contract of employment or, has acted so unreasonably, that she had no alternative but to resign. While she said that she was not issued with a written contract of employment, this complainant has not shown that her employer was in breach of the contractual arrangement between her and the respondent or, that they acted unreasonably in their treatment of her.

Reasonableness is required from both parties. It was clear from the evidence of the respondent that the complainant’s concerns could have been addressed. It is my view that she did not act reasonably by resigning before giving her employer a chance to deal with her grievance, so that the matter could be resolved in a more constructive manner.

In conclusion therefore, I find that the complainant has not made out the standard of the burden of proof required that demonstrates that the conduct of her employer was such that she had no alternative, but to leave her job.

I find that the complainant has not demonstrated that her employer behaved so unreasonably that she had to resign from her job. As a result of this finding, I have decided that this complaint under the Unfair Dismissals Act is not well founded.

Constructive dismissal