Complainant

Respondent

Parties

Shanna  Power

HealthHero Healthcare Ireland Ltd

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

  Self

M.P. McGuiness BL, instructed by  Hayes 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-00047617-001

13/12/2021

The complainant was employed as the Diagnostics and Operations Coordinator which is an administrative support role with the respondent on 01/10/2020.  She was paid €3,538.33 gross per month and worked 40 hours per week. The complainant believes that she was constructively dismissed on 03/12/2021 due what she describes as the “unfair and unreasonable” behaviour of the respondent.  The complainant submitted her complainant to the WRC on 13/12/2021 and is seeking compensation. The complainant was accompanied at the hearing by a work colleague who is the Medical Administration Manager with the respondent.  The Medical Administration Manager is also the complainant’s mother.  Evidence in this case was taken on oath and affirmation.

The respondent denies that the complainant was constructively dismissed.  She did not utililse the respondent’s grievance procedure and her resignation took place 15 days after her mother submitted a complaint against the respondent

The complainant commenced her role with the respondent on 01/10/2020.  In April 2020 the Managing Director advised staff that a new manager would be starting.  The managing director also told staff that this person was a friend of his. The complainant’s mother also works for the respondent, and she is currently on long-term sick leave as a result of work-related issues.

The complainant  set out a submission which contained a large volume of e mail exchanges and Teams conversations.  The contents of these were read at the hearing.   It is the complainant’s evidence that her role constantly changed, and her hours of work and the respondent’s expectations also changed. The complainant was due to work 40 hours over a four-day week from Monday to Thursday, but she was then expected to regularly work Friday, Saturday and Sunday.  The complainant gave evidence that she worked a lot of Sundays and did not receive any compensation for doing so.  The complainant describes that the way the respondent treated her mother and other staff was terrible.  If they actioned something they had to wait weeks for a response and her manager spoke to her in “a shocking manner”.  She was told by her manager that she was taking things too personally.  The complainant provided details of a data breach in relation to her mother which was placed in an “in-box” for all staff to see.  The complainant found this distressing.

The complainant also brought some incorrect practices to her managers attention on several occasions.  These included the use of personal e-mail for company business and the manner in which some patients such as cancellations at short notice, delays in medication requests and administration staff not notified of changes in relation to these.

The complainant raised these issues with her manager, and she provided evidence of these exchanges.  The complainant had an ongoing issue with one psychiatrist, and she notified her manager and managing director on 11/10/2021 that “the culmination of all these issues has made me feel stressed and inadequately prepared to deal with the vulnerable Psychiatric patients. My concerns are ultimately for our patients.  I do not know how much longer I can cope with these stressful and unacceptable working conditions”.

The complainant submitted a letter of resignation on 26/11/2021 and noted that she was resigning and stated “I feel I can no longer work for the company and have no choice but to resign.  I do not agree with the companies’ practices or the treatment of its staff”.

The complainant received a response from the Medical Director expressing his disappointment at her decision and asking her to reconsider.  He also outlined that she was an invaluable member of the team.

The complainant submitted that the Managing Director was very difficult to work with and that communication and support for staff is dreadful.  The complainant said that she had to prioritise her health and well-being and leave her role with the respondent.  The complainant has taken on another role in December 2021 and received her first payment on 17/12/2021.  In this role she is paid less than she was receiving from the respondent.  The complainant submitted a detailed breakdown of her loss since taking up the new role.

Mrs Geraldine Power gave evidence at the first hearing.  She confirmed that she commenced working for the respondent in August 2019 as the Administration Manager.  At that time, it was herself and Daniel Clear who were there.  She had a lot of administration experience and thought that the clinic was a good idea.  It grew very quickly, and they had to employ more administration staff.

Mrs Power gave evidence that the role was tough.  It was her who looked after the administration staff and some clinics were very busy.  They had to keep track of everything.  When the complainant joined the company in October 2020 there were four part time administration staff.  Mrs Power confirmed that she has been on sick leave since 07/07/2020.

Mrs Power was asked if the administration side always ran smoothly.  She said that it did not, and they were left to their own devices most of the time to try and sort things out.  They needed answers and patients needed answers, but they didn’t always get them.

Mrs Power was asked what support she received in the role.  She replied that there was no support, and she would try and sort things or with Daniel Clear or James Ryan.

The complainant made a final submission in which she stated that she had no option but to resign.  She could not do so as the respondent had no interest in staff issues.  She was asked by Mr O’Shea why her mother was on sick leave, and she found this stressful.  She did raise issues during her employment and on 03/06/2021 she raised issues with her manager.  There were delays in responding and sometimes it took four to six e mails to get a response.  The complainant felt that she could not respond to patients when doctors were ignoring her e mails.  Holidays were also an issue.  She worked there for as long as possible, and it was a toxic environment which was detrimental to her health.  She was experiencing a lot of unwanted stress and she resigned to protect her mental health and in doing so she took up employment with a substantial drop in salary.

The respondent launched its clinic in 2017.  Its mission was to reduce barriers to healthcare by providing greater access to more affordable care through a digital platform.  The founders were Dr Daniel Clear and Mr James Ryan.  The business grew and this resulted in a takeover in December 2020.  The COVID-19 pandemic had a big impact on the business and resulted in further growth.

The complainant commenced employment in October 2020 in an admin support role.  The complainant was issued with a contract of employment and an employee handbook which contained all the relevant policies. The complainant reported to the Administration Manager who is also her mother.  In April 2021 Mr Ian O’Shea was appointed as Irish Operations Manager and he reported directly to Dr Clear.  The complainant reported to Mr O’Shea when the Administration Manager went on sick leave.  Mr O’Shea has extensive experience in running technical teams and operations.

The complainant was promoted to the role of Diagnostics Coordinator in June 2021.  At that time, she was accommodated with a four-day week, and this had no impact on her salary or annual leave.  The respondent was flexible in relation to the hours worked by the complainant and Mr O’Shea was happy to facilitate her working her own schedule provided the reporting and other deadlines were not missed.  Mr O’Shea asked for a courtesy notification is she was not working in the middle of the day.

Mr O’Shea in his evidence outlined his career history and confirmed that he commenced employment with the respondent in April 2021.  His role was that of Business Director and the complainant reported to him.  Mr O’Shea outlined that the complainant was a good employee who paid a lot of attention to detail.  Mr O’Shea was asked to respond to the complainant’s submission that he probed her in relation to personal matters.  Mr O’Shea gave evidence that he did not probe but during his one-to-one meetings he would often ask the complainant how things were, and this was no more than the normal pleasantries.  Mr O’Shea confirmed that he made a business case to facilitate the complainant working 5 days over 4 as this was the first occasion they had such a request.  The complainant confirmed to him that she was able to get her work done in that time frame.  Mr O’Shea also confirmed that he often asked the complainant if she was available to cover other shifts and this was done on the basis that she was not expected to undertake those shifts unless they suited her.  Mr O’Shea was asked if the report which was required to be submitted on a Monday morning by the complainant was raised as an issue with him.  He confirmed that it was not raised by the complainant but the person who replaced the complainant did raise an issue and the timing of the report was changed following this request.  Mr O’Shea also explained that he asked to be “cc’d” on any e mails the complainant was sending to Dr Clear as he needed to have an awareness of any issues arising. Mr O’Shea was asked if the complainant raised an issue about the lack of response from Dr Clear and he explained that Dr Clear was the Managing Director and the Psychiatrist for the business. He can have a large volume of e mails and he may need to be followed up for a response if one was required.

Mr O’Shea confirmed that it was he who nominated the complainant for the role of Irish Culture Champion as he felt she was appropriate for her given her role.  Mr O’Shea confirmed that this role also gave the complainant access to their chief people officer.

Mr O’Shea confirmed that the complainant had an opportunity to contact him on a daily basis.  Mr O’Shea also set up a structured one-to-one meeting with the complainant and clearly explained the purpose of those meetings.  In their submission the respondent provided a copy of Mr O’Shea’s email which stated that these meetings:  “… they are set up to discuss whatever you want with me, it’s designed for people to get to talk about things outside of the day to day, or the day to day, if that’s what they wish to discuss.  It can be things you want to highlight, career talks, issues at work (or personal, if you want to share), comments about managements, ideas for the business, project work-goals, worries, questions etc etc – those are just a few examples of potential talking points – but its whatever you want it want it be”.

Mr O’Shea confirmed that in one of those meetings he asked the complainant if the situation with her mother was impacting her work or at home and the complainant said that she was able to separate the two and they had no bearing on her professional capacity to do her work.  Mr O’Shea may have asked this question on other occasions so as to ensure that she was supported and at all times the complainant was adamant that she could separate the two worlds.  Mr O’Shea was asked to respond to the complainant’s evidence that she found it difficult to work for the respondent given the issues that had arisen with her mother.  Mr O’Shea confirmed that he was aware of the issue with the complainant’s mother, but the complainant vehemently confirmed to him that she was capable of keeping her work relationship professional.  Mr O’Shea was asked to respond to the complainant’s evidence that she had no opportunity to raise issues.  He replied that she had a daily opportunity to contact him and that she also had access to the HR Officer.

Mr O’Shea was asked if he recalled the complainant making enquiries about and ADHD assessment and he confirmed that he did and he also confirmed to the complaint that a discount could be arranged.

Mr O’Shea outlined that in all her one-to-one meetings the complainant usually said that the team were busy.  Mr O’Shea denied that he told the complainant not to report any to the UK.  He confirmed that monthly and bi yearly meetings were held with the UK, so they knew the business.  In addition to this they were provided with data from the respondent.

Mr O’Shea gave evidence of the growth of the business in terms of the number of people and contractors now engaged.  He also gave evidence in relation to the challenges this brought.  Mr O’Shea outlined that the small team found it difficult to scale up quickly and the Covid-19 pandemic had an impact.  There were operational challenges, and it was difficult to have optimum communication. 

Mr O’Shea was cross examined by the complainant.  He was asked if her four-day week was discussed before she signed her contract of employment and he confirmed that it was.  It was put to Mr O’Shea that he was not correct to say that she was the first employee to be facilitated with a four-day week.  Mr O’Shea confirmed that it was the first time such an arrangement was made, and the other employees referenced by the complainant were actually part time employees.  It was put to Mr O’Shea that it was not correct to say that the complainant was not expected to work outside her four-day week as the clinics were open seven days and she had to be available to take phone calls.  Mr O’Shea it was a choice the complainant made to be available and take calls.  He only expected people to deliver what was expected of them.  Mr O’Shea had no recollection of the complainant raising an issue in relation to the pharmacy report.  If it was raised it could have been sorted just as it was when the complainant’s replacement raised it.

Mr O’Shea was asked about his instruction to be “cc’d” on e-mails to Dr Clear.  He said that he asked for this so that he could be aware of what issues were being raised so they could be dealt with.  Mr O’Shea outlined that “I need to know what my direct report is sending to my manager”.

Mr O’Shea was asked to clarify various notes of meetings he took, and he explained that these were taken contemporaneously and were notes he made on the computer while the meeting was in progress.

Mr O’Shea was asked if he would confirm that the complainant raised issues with him in relation to delays in responses from Dr Clear and he confirmed that she had.  Mr O’Shea also told the complainant that her comparisons with other psychiatrists were not comparable given the dual roles that Dr Clear had.

Mr O’Shea was asked why the complainant had to step into other roles at times and he outlined that this was part of the flexibility that was required in a small team.  He was then asked why cover was not organised for a specified individual.  Mr O’Shea explained that his options were limited due to budget and headcount restraints.  Mr O’Shea was asked to confirm that there was a pattern whereby the complainant was asked to take on other roles.  He outlined that the complainant was never expected to take on the full duties of other roles but only part of these roles when the need arose.

Mr O’Shea was asked why training was not provided in relation to dealing with challenging patients and he confirmed that it was the intention to provide this.  He confirmed that this had not yet taken place.

Dr Daniel Clear give evidence in relation to his medical qualifications and also confirmed that he was the Managing Director of the respondent. He was asked if the complainant had raised issues in relation to difficulties with her employment.  Dr Clear gave evidence that she had raised operational issues.  He also confirmed that it was not correct for the complainant to state that cancelled appointments were not rescheduled.  He also gave evidence that any delays in relation to prescriptions posed no risk to the health of any patient.  He refuted the complainant’s view that cancelled appointments were not followed up or that any cancelled appointment posed a danger.

Dr Clear was asked to clarify an e mail dated 11/10/2021.  He stated that he previously assumed that there was a 24-hour gap to make an appointment and he did not expect an appointment to be made on that date in question.

Dr Clear was asked his view on the complainant’s view that ADHD was considered a psychiatric illness.  He said that ADHD was a neurodevelopmental disorder.  He was again asked to confirm his medical qualifications and he outlined that he studied initially in UCD and followed this up with twelve years of specialist training.  He also lectures in Kings College, UK and RCSI, Dublin.  He was asked if he felt that he was more knowledge of ADHD than the complainant and he confirmed that he had. 

Dr Clear was asked about the phone call that was held with the complainant and he said that his Teams record showed that this lasted 70 minutes.  He felt that the complainant was very positive, and he received positive feedback from the complainant after this meeting.

Dr Clear was asked to explain how the business was going and he confirmed that it was a very busy time.  He had two full-time roles and it was for this reason that he recruited Mr O’Shea.

Dr Clear was cross examined by the complainant.  He was asked if patients were never left without an appointment and if they were refunded.  He explained that there may be one or two cases.  He was then asked if, based on the issues raised by the complainant, if patients ever asked to be discharged from his care.  He confirmed that this had not occurred.

Dr Clear was then asked by the complainant about issued in relation to vulnerable patients and medication regimes and controlled drugs.  The Adjudicator clarified that issues of a medical nature relating to patients were not appropriate for discussion in a WRC hearing.  The WRC hearing deals with issues in relation to workplace matters.

It was put to Dr Clear that his evidence that the teams meeting was 70 minutes was not accurate and that it was more like 30 minutes.  Dr Clear confirmed that when the first call broke down after about 30 minutes a second call was made, and this brought the total time to around 70 minutes.

It was submitted on behalf of the respondent that the onus of proof in this case lies with the complainant.  The complainant must show that the conduct of the employer was so unreasonable that she had no option but to resign.  It was significant that the complainant submitted her resignation 15 days after her mother lodged a complaint against the respondent.

It was also submitted on behalf of the respondent that she cannot succeed in a constructive dismissal complaint as she did not utilise the respondent’s grievance procedure.  She had direct access to HR in the UK, and she was fully competent and capable of raising a formal grievance.

The complainant in this case is alleging constructive dismissal.  As the fact of dismissal is in dispute the onus of proof rests with the complainant to establish facts to prove that the actions of the respondent were such as to justify her terminating her employment.

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal.  This arises where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be “entitled” to resign his/her position.  This is often referred to as the “contract test”.  This requires that an employer 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” as was held in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332.

Secondly, there is an additional reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test.  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 the conduct any longer and, if so he/she is justified in leaving.

In constructive dismissal cases, the Adjudication officer must examine the conduct of the parties.  In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they have.  They must make the employer aware of their situation in order to allow the employer an opportunity to rectify the problem or issue before resigning.  They must clearly demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign. 

The complainant in this case is relying on the reasonableness test and on her complaint,                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          form outlined that she resigned due to the “unfair and unreasonable” behaviour of the respondent.

As the Adjudication Officer I am obliged to establish if Section 1(b) of the Act of 1977 operates to validate this complaint of constructive dismissal.  Section 1(b) states:

“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 his contract of employment without giving prior notice of the termination to the employer.”

Considering the statutory definition contained in Section 1 of the Act of 1977 as amended, and the authoritative principles adopted by the relevant fora and the Courts, the onus lies with the complainant to demonstrate that her resignation was justified.

In supporting her decision to terminate her employment the complainant will have to prove that the circumstances of her dismissal met the tests as set out by Lord Denning MR in Western Excavating (ECC) v Sharp (1978) IRL 332, set out above.

In this case the reasonableness test which was expressed in the following terms if of relevance:

“an employer who conducts himself or his affairs so unreasonably that the employee cannot be expected to put up with it any longer, the employee is justified in leaving.”

Both of these tests have been followed by various Irish authorities.

In relation to breach of the complainant’s contract of employment there was no evidence that any such breach occurred.  The respondent had issued the complainant with a detailed contract of employment.  

In reviewing the “reasonableness test” the Supreme Court in Berber V Dunnes Stores [2009] E.L.R. 61 in considering the reasonableness test stated:

“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.”

The first question for the Adjudicator to decide there is whether or not because of the conduct of the respondent the complainant was entitled or was reasonable for her to terminate the contract of employment.  This is a stringent test which is often difficult to invoke.

In examining the conduct of the employer there was no evidence that the complainant had any issue with the conduct of the employer. No grievance was raised. 

The imperative to utilise the grievance procedure is clearly outlined in the case of Conway v Ulster Bank Limited UDA474/1981:

“The Tribunal considers the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.  An elaborate procedure existed but the appellant did not use it.  It is not for the Tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible”.

The requirement to use the employer’s grievance procedure was also emphasised in the Labour Court case of Mary Kirrane v Barncarroll Area Development Co Ltd UDD1635) which stated:

“Where constructive dismissal is contended for it is for the person making the claim to establish that the behaviour of the employer was such as to leave the appellant no alternative but to terminate the employment or that the employer’s behaviour has fundamentally undermined the employment relationship.  The person claiming constructive dismissal has an obligation to access available grievance procedures in a course of attempting to deal with whatever situation led to consideration of termination of the employment”.

The complainant’s contract of employment provided for the use of a grievance procedure.  Section 19 and 20 of that contract states: “In the interest of fairness and justice and to ensure the proper conduct of business, certain provisions to deal with matters of grievance and discipline are necessary.  Details of our grievance procedure are contained in Employee Handbook and should be read fully as it forms part of your contract of employment”.  The grievance procedure is clear and notes that “the Company takes pride in its “Open Door” policy and actively encourages employees to talk to a Manager and discuss issues that affect them and their working environment”.

The complainant was more than capable of formulating a grievance and following it through.  She chose not to do so.  I find that there is no evidence to indicate that the complainant made any reasonable effort to have her grievances addressed before resigning.  In that context the respondent did not have any opportunity to hear and respond to any matters of concern that the complainant had. 

Having reviewed all the evidence and the written submissions I find that the complainant was not constructively dismissed.

I have decided that the complainant was not constructively dismissed from her employment.  I find that this complaint is not well founded.

Constructive dismissal.  Grievance procedure.