Complainant

Respondent

Anonymised Parties

Psychiatric Nurse

Health Service 

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00030441-001

22/08/2019

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

CA-00030811-001

05/09/2019

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave her evidence under oath, a witness for the respondent gave evidence under affirmation.  Both parties were offered and availed of the opportunity to cross-examine the witness for the other party.

The complainant was employed as a Psychiatric Staff Nurse with the respondent from 13 August 2012.

The complainant submitted that there was an incident on the night of 15/16 June 2018 around the handover procedure.  The complainant accepts that the handover record was incorrect but submitted that this did not amount to falsification of records.

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The complainant submitted that falsification of records is one of the most serious allegations that can be laid against an employee.  The complainant submitted that under the respondent’s disciplinary procedure, fraud or falsification of documents would result in immediate dismissal. The complainant submitted that the wording of the complaint taken against her to the regulatory body indicated a level of intent to falsify records whereas there was no intent but rather there was an oversight arising from the complainant following what she submitted were normal procedures.

The complainant submitted that by submitting a complaint against her but not against another employee, her supervisor, who was caught up in the incident complained of, the respondent was discriminating against her.

The complainant submitted that the supervisor was of Indian nationality and that this was the reason why no complaint was made against him and that she herself came from an African background this amounted to discrimination on the race ground as provided for in the legislation.

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The complainant submitted that the manner in which the respondent dealt with the reporting of this incident, the manner in which it raised a complaint against her to her regulatory authority and the manner in which it conducted the investigation process all combined to create an environment in which it became impossible to continue working for the respondent.

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The respondent submitted that the complainant has not established a prima facie case of discrimination required under the legislation and accordingly this complaint should fail.

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The respondent submitted that it is very well established that only in rare circumstances will an employee be intitled to treat herself as constructively dismissed.

The respondent submitted that the complainant bears the burden of proof and cannot establish any case regarding a breach of contract or unreasonableness on the part of the respondent.

The respondent submitted that it followed a process that was at all times fair and reasonable and that the complainant was treated fairly during her employment.

The respondent submitted that its conduct cannot be held to be unreasonable under any circumstances.

The respondent submitted that the did not bring any formal complaint or grievance to its attention or any perceived breaches of contract.  Nor was any reference made to a breach of contract in her letter of resignation.

The respondent submitted that the complainant resigned before the outcome of an investigation into the alleged incident was investigated.

The respondent submitted that the complainant has not established the necessary tests to establish a constructive unfair dismissal.

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The complainant had concerns regarding the nature of the complainant lodged to her regulatory body regarding the incident in that the allegation of impropriety was that of falsification of records and the terms of reference for the investigation of the incident relates simply to false reporting.  Notwithstanding this aspect of the complaint, the submission from the complainant in relation to this case is that no similar complaint was made against the named supervisor, an Indian national, and that this difference in treatment was due to his race and friendships with management.  Both employees were involved in the reporting procedure and both were registered with the same regulatory body.  No complaint was submitted against the supervisor. On the face of these facts which were not disputed, I am satisfied that the complainant has adduced facts such as to establish a prima facie case.  Accordingly, if falls to the respondent to refute the inference of discrimination.

For its part the respondent outlined that the role of supervisor was to collate the figures presented by the Staff Nurse and not to undertake the head count himself.  Although it was noted that some supervisors did do a headcount, this was not a mandatory part of their role.  This element was not disputed by the complainant.  The respondent submitted that the role of the Staff Nurse was to undertake the headcount and that this difference in roles accounted for the submission of a complaint to the regulatory body regarding the complainant and not one for the supervisor.  Although it was disputed by the complainant that this was her role, on the night in question, in all the circumstances that applied, it was accepted that it was the role of the assigned staff to do a headcount. The respondent submitted that this difference in role accounted for the difference in treatment.  The respondent submitted that accordingly the submission of a complaint or not, had nothing to do with the complainant’s race.

Having considered the written and oral evidence submitted by both parties, although I note the difference in the wording of the complaint submitted to the regulatory body against the complainant versus the terms of reference for the internal investigation, I am satisfied that the explanation given by the respondent as to the duties of the complainant and the named supervisor accounts for the difference in treatment in taking a complaint to the regulatory body rather than the race ground.

Although, there was a difference in the complaint taken against the complainant and the terms of reference for the investigation of the incident, I am satisfied that the reason given by the respondent provides a reasonable basis as to why no complaint was taken against the supervisor to the regulatory body.  Accordingly, I am satisfied that the respondent has rebutted the inference of discrimination raised by the complainant.  I therefore find that the complainant was not discriminated against.

CA-00030811-001

Section 1 of the Unfair Dismissals Acts 1977 states that

dismissal”, in relation to an employee, means—

(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;

The respondent submitted that the burden of proof with rests upon the complainant is a difficult one to prove.  In support of this contention it submitted the case of Western Excavating (ECC) Ltd v Sharp [1978] ICR 221.  The respondent, noting that there are two tests to determine whether an employee has been constructively dismissed, cited the following from that decision:

If the employer is guilty of conduct which is a significant breach going to the root of a 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.

The respondent referred to this element ‘the contract test’ and noted that it had not been guilty of any such conduct.

The respondent then also noted the ‘reasonableness test’ and cited the Employment Appeals Tribunal case of employee v employer UD1421/2008 where the Tribunal held that:

In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in Section 6(1) of the Act.

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 employers. 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.

The respondent submitted that the complainant had not exhausted all internal procedures, rather she had not invoked any internal procedures and that she had, in fact, resigned before the conclusion of the investigation which may have cleared up the circumstances surrounding the incident.

The respondent also submitted that accordingly she was not entitled to consider herself constructively dismissed.

The complainant for her part submitted that the fact of the respondent submitting an erroneous complaint about her to the regulatory body indicated that it had breached her contract and that it was not in any case reasonable for the respondent to make such a complaint.

Having considered the written and oral evidence, I note that the complainant was employed in a position that is governed by a regulatory body.  In the circumstances, I do not consider that it was unreasonable of the respondent to make a complaint about the complainant to the regulatory body rather I consider that the respondent had a duty to report its concerns to the regulatory body and let the regulatory body investigate the matter.  I also note that the respondent began the process of investigating the incident through its internal procedures.

While I note the difference between the complaint taken to the regulatory body and the wording of the terms of reference for the investigation, I am not satisfied that the complainant had no alternative but to resign.  It was open to her to either make a complaint or take a grievance internally or to engage with the regulatory body to clarify the nature of the complaint being made against her,

I note from the case of UD1421/2008 that in the paragraph following those cited by the respondents, the Tribunal noted that:

Although the claimant had approached local management on a number of occasions to express her grievances and to attempt to get working conditions and times suitable to her domestic circumstances, the action of the claimant in resigning in February 2008 after the respondent had offered her a flexi contract with options for minimum and maximum hours cannot in our view be regarded as reasonable nor could it be said that the conditions and terms, even though not then specified, which would flow from such a contract, would be intolerable for the claimant.

In the instant case, the claimant made no attempt to express her grievance and furthermore made no reference to it in her letter of resignation, thanking the respondent for the support and opportunities it had given her over the previous six years.  I consider that the complainant had an alternative to resignation.

Having considered all the written and oral evidence in relation to this complaint, I find that the complainant was not unfairly dismissed.

CA-00030441-001

Having considered all the written and oral evidence in relation to this complaint, my decision is that the complainant was not discriminated against.

CA-00030811-001

Having considered all the written and oral evidence in relation to this complaint, my decision is that the complainant was not unfairly dismissed.

Employment Equality Act, prima facie case, inference rebutted. Unfair dismissal not established.