Complainant

Respondent

Parties

Aideen O' Riordan

National Orthopedic Hospital

Representatives

Shonagh Byne SIPTU

Peter Flood, Ibec.

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-00044282-001

24/05/2021

The Complainant was employed by the Respondent in a Support Services position. Employment commenced on 26th October 2017 and ended on 23rd April 2021.

This complaint was received by the Workplace Relations Commission on 24th May 2021.

The Complainant commenced employment with the Hospital in October 2017 working 21.25 hours per week as a domestic worker.

In January 2019 her role changed to that of Domestic Support Services Attendant working 39 hours per week. This work involved cleaning on the wards including cleaning toilets. An amended contract was issued and accepted.

There is reference in the contract to the staff handbook and where it can be obtained.

Thestaff handbookcontainsagrievancepolicy.

In July 2019 the Claimant made an allegation under the Hospital Dignity at Work Policy against a fellow employee in the Department.

This allegation was investigated by an external consultant and was not upheld.

Background to Resignation

On March 22, 2021, the Complainant was asked by the Hygiene Services Manager, if she would cover for another worker on a Saturday cleaning a doctor's bedroom including a toilet as well as a toilet in the front hall. The Claimant did not agree to cover for the other worker, but the Hygiene Services Manager asked her to think about it and they would talk about it the following day.

On the following day the Complainant informed the Hygiene Services Manager that she would not take on this work and handed a letter of resignation to him. The Hygiene Services Manager refused to accept her resignation. He proposed removing cleaning bathrooms in St Joseph’s Ward and in its place that she cleans the Doctor's room and the toilet attached to that room and clean the front hall toilet. The Complainant refused this offer and insisted on resigning. Again, the Hygiene Services Manager refused to accept her resignation and asked her to think about the work he was asking her to do.

On March 25, 2021, the Complainant went to the office and said to the Hygiene Services Manager, "well, have you accepted my resignation?"

The Hygiene Services Manager replied that he had not even opened the letter as he hoped she would have a change of heart.

The Complainant insisted that she wanted her resignation accepted. She stated that she was 5 years in the Hospital and did not want to clean toilets for the next 7 years. She stated that she believed that she was better than this. She had been brought up to better herself. However, the Claimant was a qualified Health Care Assistant but never applied for such a position in the Hospital despite being encouraged to do so.

They then discussed the Complainant’s desire to work in the Kitchen, but the Hygiene Services Manager stated that he could not give her a job in the Kitchen as there was no vacancy. The Claimant had been provided with work every second Sunday in a Ward Kitchen on overtime which had not been done for others. She was also given more opportunities than other staff to work in the Kitchen covering absenteeism (annual leave/sick leave) on a Monday to Friday basis.

The Claimant insisted on her resignation being accepted. The Hygiene Services Manager did so reluctantly.

Her letter stated the reason for her resignation as "My workload is adequate as it is and as a result, I feel I need to hand in my resignation."

Her resignation took effect one month later April 23rd, 2021.

The Law

Section 1 of the Act defines constructive dismissal as

"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.

Case law has established that there exists a burden on the claimant to demonstrate that

The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, (known as the 'contract test') or

The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign (known as the 'reasonableness test').

It is only when either of the above tests have been met that the employee is justified in terminating the contract of employment.

It appears that the Claimant is arguing the 'reasonableness test' in this case. There is no allegation of a breach of contract by the employer.

The burden of proof is on the Claimant to establish that the Hospital acted so unreasonably that her continuation in the employment was intolerable.

In constructive dismissal cases the burden of proof is high on the Claimant to establish that she acted reasonably in resigning from her employment.

In the case McCormack v Dunnes Stores UD1421/2008 the Employment Appeals Tribunal stated

"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/her employer. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.

Furthermore, the Claimant would normally be expected to put the employer on notice prior to resignation that if his/her complaints are not addressed then he/she will have no option but to resign.

This never happened in this case.

Neither did the Claimant exhaust the internal remedies to deal with a grievance.

In the case Supermacs Ireland  Limited v Sarah Ryan EDA2131 the Labour Court stated

"In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have.

He or she must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning (see Conway v Ulster Bank limited 475/1981}.

In Beatty v Bayside  Supermarkets UD142/1987, in referring to the need to utilise grievance procedures, the Employment Appeals Tribunal held:

               ‘'TheTribunalconsidersthatit isreasonableto expectthatthe procedures laiddowninagreements be substantiallyfollowedinappropriatecasesbytheemployerandemployeeasthe casemaybe,thisistheviewexpressedand followedbytheTribunalinConwayvUlsterBank limited475/1981.In thiscasethe Tribunalconsidersthattheprocedurewasnotfollowedbythe claimantandthatit wasunreasonable forhimnot todoso.Accordingly, weconsiderthatthe applying thetestof reasonablenessto theclaimant'sresignation hewasnot constructively dismissed.

There is a grievance procedure in the Hospital. The Claimant had previously invoked the Dignity at Work Policy and so had experience in using Hospital procedures to pursue a complaint.

The Hospital grievance procedure states that where a resolution cannot be reached in relation to a grievance that the matter can be referred to the Workplace Relations Commission or a mutually acceptable third party.

The Claimant did not do this, and it was unreasonable for her not to do so.

The work she was asked to do was not unreasonable given the category of worker to which she belonged.

Even if she believed that her workload was adequate and that she could not take on any more work she could have processed a grievance on the matter through the Hospital grievance procedure.

Conclusion

The Hospital management facilitated the Claimant with other work whenever it could. She was treated more favourably than other staff with work in the kitchen.

It could not be said that her employer's behaviour was so unreasonable as to make the continued working with the Hospital intolerable.

There was a grievance procedure which she never exhausted to address her concerns on volume of work.

Background

The Complainant commenced employment as a Household Kitchen Assistant in Support Services with the Respondent on 23rd October 2017.  The Complainant originally worked 21.5 hours per week and worked an evening shift in the kitchen for a period of five months.  After the recruitment of additional staff, the Complainant’s duties included kitchen work, toilet cleaning and office cleaning for a period of seven months.

On 22nd January 2019, the Complainant secured a 39.5-hour permanent contract on the same terms and conditions as the original contract and worked under these terms until December 2019.

In March 2019, the Complainant raised a formal bullying complaint against another member of staff.  The matter was investigated by an external body.  Some of the Complainant’s complaints were upheld and the remaining findings were inconclusive.

The Complainant was subsequently removed from the kitchen roster and placed on toilet cleaning duties for her full 39.5 hours.  The Complainant contends that this unfair change was implemented due to her lodging the bullying complaint.

The Complainant did not receive an updated contract to reflect the change to her duties.

The Complainant was instructed by her Line Manager, Mr DB to clean 25 toilets per day.  All other staff who carried out full time toilet cleaning were only required to clean 13 toilets per day.

Every second Sunday, the Complainant was rostered on 8 hours overtime and worked in the kitchen for that shift.

The Complainant spoke to Mr DB a number of times and asked that he implement a fair roster across the department to allow her to work in both the kitchen and also the toilets so she could be treated the same as the other staff.

The Complainant was advised that it was not her job to work in the kitchen and that she only cleaned toilets now. 

While the Complainant cleaned toilets permanently, other staff were hired and rostered on kitchen duties even though the Complainant had asked to be allowed work in the kitchen as well as cleaning duties.

In March 2021, the Complainant was instructed by her Line Manager to clean extra toilets in addition to the 25 toilets she was cleaning and to clean the Doctor’s bedroom.  The Complainant was very upset about this instruction and the fact that she felt that she was being treated differently to other staff.

After repeatedly asking to be treated fairly and speaking to her Line Manager on numerous occasions, the Complainant felt that she had no option left and she advised HR that she was handing in her resignation on 23rd March 2021.

During the contractual notice period, the Complainant met with HR a number of times to discuss her concerns.  HR had been aware of the situation and they advised that they try and resolve the matter.

However, the matter remained unresolved and the Complainant’s request for a fair roster were not facilitated.

On Monday, 26th April the Complainant was called to a meeting with Hr and her Department Manager.  Once again, she expressed her request for a fair roster, but her Line Manager responded that she was not entitled to special treatment.  The Complainant was accompanied by Ms MD.

The Complainant requested that SIPTU refer her complaint to the WRC and the complaint was lodged on 24th May 2021.

The Complainant’s position:

The Complainant fully complied with the Respondent’s policies and procedures when she lodged a bullying complaint against a colleague in December 2019.  The outcome of that process was that the Complainant was permanently removed from kitchen duties and instructed to clean 25 toilets full time for 39.5 hours per week.

The Complainant, having followed the relevant procedures in her bullying complaint, was then unfairly treated and her duties were changed.

This provides evidence that the local management attempted to rectify this issue quickly and thus did not comply with the grievance procedure as agreed with SIPTU.  Resulting in a lack of confidence from the Complainant in how grievance procedures are dealt with.

When she raised verbally her concerns regarding her permanent toilet cleaning duties with her Line Manager, her concerns were not addressed, and she had no confidence that her complaint would be dealt with properly.

The Complainant was seeking to be treated equally with other staff including newly hired staff who were allowed rotate between kitchen and cleaning duties.  The Complainant had 25 toilets to clean while other staff had 13 toilets.  The Complainant was then asked to take on additional cleaning duties by her Line Manager.  The Complainant was not treated in the same manner as her colleagues who worked between the kitchen and also cleaning duties.

The Complainant spoke to her Line Manager and to HR about the manner in which she was being treated and her concerns were not resolved.  Proving that the management were fully aware of the Complainant’s compliance with the agreed SIPTU grievance procedures.  Due to COVID restrictions a colleague (a member of kitchen staff) attended the meeting with the Complainant.  No resolution was found.  Furthermore, following from the Complainant’s constructive dismissal, the colleague who witnessed the meetings was then placed on a permanent toilet cleaning roster after spending the last 30 years on permanent kitchen duties.  This adjustment in roster was never prior agreed or mentioned to this staff member. 

Job Rotation: Local management do not implement a fair job rotation roster for Kitchen Assistant employees.  The Complainant asked numerous times for a fair roster to be implemented as mentioned above.  To date, no job rotation matrix or schedule has been provided.

Units per Labour Hour: The Complainant was instructed to clean 25 toilets per 8 hour shift.  Colleagues also on toilet cleaning duties were only responsible for cleaning 13 toilets per shift.  When management were questioned on this issue, they attempted to suggest that the square metre per toilet was larger in each of the 13 toilets than the 25.  However, each toilet still contained the same units.  Namely, a toilet, a handbasin and a shower.  This means that regardless of the square metre of the facility, the Complainant was required to clean 9 units (3x25/8) per hour per shift while the other staff members were required to clean just 5 (3x13/8) units per shift.

Legal Submissions:

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal.  First, where the employer’s conduct was of such a nature as to entitle the employee to terminate his employment; in essence that the conduct of the employer amounted to a repudiatory breach of the contract of employment such that the employee would be entitled to regard himself or herself as having been dismissed (the “contract test”).

In the English Court of Appeal case of Western Excavating (ECC) Ltd v Sharp [1977] EWCA Civ 165, which has been referred to frequently by the Labour Court and the Employment Appeals Tribunal, it was held that to meet the “contract 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”.

Secondly the Labour Court in the case of Waterford Senior Care Ltd & Tabb UDD1938 (July 2019) stated that:

“The Act at Section 1 addresses the issues of reasonableness.  It is settled law that the Court, in considering a complaint of constructive dismissal, must consider this issue either as 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 it any longer and, if so, he is justified in leaving”.

In Murray v Rockabill Shellfish Ltd [2012] ELR 331, the Employment Appeals Tribunal held that:

“The Tribunal must consider whether because of the employer’s conduct the claimant was entitled to terminate his contract, or it was reasonable for him to do so.  An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract”.  Furthermore, in the case Brady v Newman UD330/1979 the Tribunal stated that “…. an employer is entitled to expect his employee to behave in a manner which would preserve his employer’s reasonable trust and confidence in him so also must the employer behave”.

Conclusion

It is the Complainant’s contention that the Respondent, in failing to address her concerns and in failing to treat her in the same manner as other staff, acted so unreasonably that she was left with no option but to resign her employment.

The Complainant contends that she had no choice but to give up her permanent contract of employment with the Respondent due to the unfair treatment and stress and upset caused by the actions of the Respondent.

At the hearing of this complaint comprehensive written submissions were made by the respective representatives of the Complainant and the Respondent.

In considering the facts of the complaint I have considered the case of G4S Secure Solutions (Ire) Ltd v Shine (UDD 1744) in which the Labour Court affirmed the decision of the Adjudication Officer finding that it was not reasonable for the claimant to terminate his own employment. Citing the decisions in both Beatty v Bayside Supermarkets(UD 142 / 1987) and Allen v IndependentNewspapers (Ireland) Ltd ([2002] ELR 84) the Court concluded that the failure of the claimant to utilise the respondent’s internal grievance procedures meant that it could not be said that the respondent was guilty of conduct such as to entitle the claimant to consider his employment terminated. Indeed, the Court noted that the claimant had the benefit of trade union representation and he had been advised by the respondent’s operations manager to raise any issues he had with the union.  In all the circumstances the Court did not find the respondent’s conduct to be unreasonable or such that it justified the claimant’s resignation.  Nor, indeed, could it be said that the respondent’s conduct demonstrated that it no longer intended to be bound by one or more of the essential terms of the contract between the parties.

I note that in the instant case the Complainant did not utilise the Grievance Procedure in any shape or form, and it is for this reason I must find that the complaint is not well-founded.

I note that in the instant case the Complainant did not utilise the Grievance Procedure in any shape or form, and it is for this reason I must find that the complaint is not well-founded.

Constructive Dismissal.