ADJ-00022701

Complainant

Respondent

Anonymised Parties

A Senior Care Assistant

A Nursing Home

Representatives

Lisa Conroy Peninsula Group Limited

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-00029468-001

04/07/2019

The Complainant commenced employment with the Respondent, a Nursing Home, on 26 October 2016 as a Care Assistant. The Complainant later became a Senior Care Assistant. 

On 28 May 2019, an incident took place between the Complainant and two colleagues. The Complainant alleged that she received an injury during this incident. The Respondent carried out an investigation on foot of the complaint raised by the Complainant. 

On 14 June 2019, the Respondent communicated with the Complainant to the effect that, following investigation, the complaint had not been substantiated. 

Having initially raised some issues in relation to the investigation, the Complainant did not exercise her right to appeal the outcome of the investigation and resigned from her position on 21 June 2019. 

On 4 July 2019, the Complainant submitted a complaint of constructive dismissal under the Unfair Dismissal Act, to the WRC. 

That complaint, having been duly delegated to me by the Director General of the WRC, is the subject matter of this adjudication.

Background:

In her submission, the Complainant described an incident, which took place on 28 May 2019, during which, two colleagues, Ms A and Ms B, each punched her a number of times in the arm. 

According to the Complainant’s submission, at the time of the incident, she was standing in the reception area with a colleague, Mr C. In addition, the Complainant stated that another colleague Mr D ran over to her to check how she was and told the two colleagues to leave the Complainant alone. 

In her evidence, the Complainant described in some detail the impact that the incident had on her. She stated that, while being shaken and unable to speak, she managed to work to the end of her shift. However, the Complainant stated that she then started to cry uncontrollably. She further stated that while she was sore and bruised from the incident, the reason she went to her doctor was because she was finding it very difficult to function, as a result of the incident. According to her submission, the Complainant reported the incident to the director of nursing (Ms E) three days later. She further stated that she was not in a fit state to do it prior to that, as she was too ill. 

According to the Complainant’s evidence, she was surprised at Ms E’s response when she reported the incident to her. The Complainant stated in evidence that Ms E asked her if she wanted her colleagues to be sacked. (This allegation was denied by Ms E during her evidence to the Investigation) The Complainant stated that she told Ms E that she required the matter to be dealt with informally as per the employee handbook, as she needed to be reassured that such an incident wasn't going to happen again. 

The Complainant stated in evidence that she found the two weeks following her initial meeting with Ms E, harrowing as she was sick, out of work and unable to function, while the two colleagues involved in the incident were able to continue working. According to the Complainant, she had not been treated with any dignity during this time. She further stated that she ignored advice from her family to report the incident to the gardai, on the basis that she believed Management would deal with the incident. However, following the issuing of the investigation findings, the Complainant reported the matter to the Gardai, but, it was not progressed any further. 

According to the Complainant’s evidence, she attended a grievance investigation meeting on 7 June 2019, which was conducted by Ms E. The Complainant further stated that, when she received the outcome of that investigation, on 18 June 2019, she felt gutted and betrayed, because the finding stated that there were not sufficient grounds to substantiate her grievance. According to the Complainant, the letter went on to suggest that she had in fact made “unfounded accusations”, which was tantamount to calling her a liar. 

In her evidence, the Complainant stated that she did not exercise her right to appeal the decision because the person nominated to hear her appeal was one of the proprietors of the nursing home and was also husband of the other proprietor, who in turn had participated in all the investigation interviews in the role of notetaker.

Complainant’s Submissions

In support of her complaint for constructive dismissal, the Complainant made the following submissions: 

·       She stated that she had no other choice but to leave her employment,

·       Her complaint was not extensively investigated by the Respondent.

·       The process used for the investigation was flawed.

·       The Complainant claimed that there were “massive inconsistencies” in the statements obtained during the investigation. The Complainant referred to potential collusion between witnesses, retracting of evidence and failure to take a statement from the Complainant’s sister (Ms G), who was also an employee of the Respondent and who had relevant evidence to submit.

·       The appointment of the proprietor’s husband as the Appeals Officer clearly indicated to her that the procedure was biased. In addition, the Complainant stated that she did not want to have to put herself through more emotional trauma in those circumstances.

·       According to the Complainant, the incident which occurred with her colleagues on 28 May, is classified as gross misconduct in the employee handbook. However, the Complainant suggested that management played down the incident from the beginning. 

Conclusion:

In concluding her submissions in support of her claim, the Complainant provided a detailed account of the impact the incident had on her both personally and professionally and the impact it had on her family.

Background:

The detailed background account provided by the Respondent's representative was consistent with that provided by the Complainant and that generally contained in the evidence adduced. 

Respondent’s Submission:

In response to the Complainant's claim that she was constructively dismissed following an investigation into a grievance she had lodged, the Respondent's representative stated that the allegation is denied in full. 

In support of the Respondent position in this regard, their representative made the following submissions: 

·       The Complainant resigned after lodging a grievance, which was extensively investigated and deemed to be not well founded. 

·       The Respondent's employee handbook sets out a detailed grievance procedure and outlines the steps required to be taken and who would handle any appeal should the claimant remain dissatisfied. 

·       The Complainant was given a right of appeal of the investigation findings, however, she did not exercise this option, thereby failing to utilise the full grievance procedure which was available to her. 

·       The Respondent does not accept that the Complainant had no other choice but to leave her employment. In support of this argument, the Respondent relies on Section 1 of the Unfair Dismissals Act. 

·       The Complainant failed to discharge the high burden of proof required in a case of constructive dismissal. 

In support of the submissions outlined above, the Respondent's representative cited the following case law: Nicola Coffey v Connect Family Resource Center Limited (UD 1126/2014), A General Operative v A Religious Society (ADJ-00002814), Western Excavating (ECC) Ltd v Sharpe (1978 ICR221), Debbie Kearns v Silverfern Properties Ltd (UD2428/2010), Higgins v Donnelly Mirrors Ltd (UD 104/1979), Conway v Ulster Bank Ltd (UD 474/1981) and Ian Flaherty v College Freight Ltd. (2009 6 JIEC 2901). 

Mitigation:

While the Respondent denies that the Complainant was constructively dismissed, it was submitted that, should her complaint be upheld, it is noted that she failed to take up further employment and thereby failed in her obligation, as per Section 7(2)(c) of the 1977 Act, to mitigate her losses. In support of their submissions and in this regard, the Respondent's representative cited the case of Coad v Continental Administration Company Ltd (UD 858/1999). 

Conclusion:

In concluding the submission on behalf of the Respondent, their representative stated that the claim for constructive dismissal is denied. It was further submitted that the Complainant failed to utilise the complete grievance procedure and that the allegation that was put forward by the Complainant was fully investigated by the Respondent.

With regard to the issues arising in relation to this complaint, the Complainant and the Respondent made written submission and also provided oral evidence at the Hearing. I have carefully considered and evaluated all of the evidence and submissions adduced in this regard in reaching my determinations as set out below. 

The Complainant is claiming constructive dismissal on the basis that she had to leave her job due to the conduct of her employer, the Respondent.

Constructive dismissal relates to a situation where an employee terminates their contract of employment, as was the situation in the case at hand.

Section 1 of the Unfair Dismissal of Act, 1977, defines such a dismissal as follows:

 “the termination by the employee of her contract of employment with her 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,”

Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy the dual tests of (1) Breach of Contract and (2) Reasonableness. The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign. However, it is now also generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee. All other reasonable options including grievance procedures must be explored.

The reasonableness test requires that the Complainant must satisfactorily demonstrate that the Respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for them to continue in the employment and which fundamentally breached their trust and confidence in the bona fides of the other party. In so doing, the Complainant must also show that their own action/behaviour in resigning was reasonable in all the circumstances. This is regularly referred to as the mirror image concept. 

Unlike a complaint of unfair dismissal, where the burden of proof rests with the employer to show that the dismissal was not unfair, in a constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they had no option but to resign based on their employer’s conduct.

As already stated significant case law exists which underpins the above concepts. For example, with regard to the burden of proof, the Employment Appeals Tribunal (EAT) held, in UD 1146/2011, that “in such cases [constructive dismissal] a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. she must persuade the Tribunal that her resignation was not voluntary”. 

This was further confirmed in the case of Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84), where it is stated that: “the onus is on the claimant to prove her case” and that “the test for the claimant is whether it was reasonable for him to terminate her contract”.   

It is also well established that a Complainant is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014] where the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless she can show that the said remedies are unfair” 

The behaviour of the employer in such scenarios is referred to by the EAT in Donnegan Vs County Limerick VEC [UD828/2011] where it is stated: “In particular, the claimant must show that the Respondent acted in such a way that no ordinary person, could or would continue in the workplace” and also in McCormack v Dunnes Stores [UD 1421/2008], where it is stated:  “The notion places a high burden of proof on an employee to demonstrate that she or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with her/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”.

Against the background of the above tests and in the context of the established case law in this regard, I carefully considered the evidence presented by the Complainant in support of her contention that she had no option but to leave her job. In this regard, I carefully reviewed the specific reasons presented by the Complainant in support of her claim for constructive dismissal. 

Having carefully reviewed all of the evidence adduced in this case, I found none which would suggest that the Respondent’s actions, with regard to the matter of the handling/investigation of the Complainant’s grievance, were in breach of her Complainant’s Contract of Employment. 

Based on this finding I can only conclude that the Complainant has failed to satisfy the first test in pursuance of her constructive dismissal complaint, i.e., the breach of contract test. 

With regard to the second test, the reasonableness test, the Complainant based her submission on the Respondent's handling of her grievance and, in particular, the allegedly inadequate and flawed investigation process which was conducted into her grievance. Therefore, it was necessary to consider in detail the validity of the Complainant’s allegations in this regard. 

An unlawful constructive dismissal may arise where an employer’s behaviour is so unreasonable as to mean that the employee is left with no reasonable alternative but to terminate their employment. This test of reasonableness, when applied to the within matter, must consider whether the Respondent conducted its affairs in relation to the Complainant so unreasonably that she could reasonably claim that she could no longer work for the Respondent. 

When considering claims of this nature it is the function of the Adjudicator to assess what a reasonable employer, in the Respondent's position and circumstances, might have done. This is the standard the Respondent’s actions must be judged against. The Respondent needs to show that fair process and procedures were applied when dealing with the Complainant’s grievance related to the alleged incident on 28 May 2019 and, in particular, when conducting the investigation of that incident. 

Having carefully reviewed all of the evidence adduced in this case, it is clear that the following issues were key factors in the Complainant’s decision that she could no longer work for the Respondent  and, therefore, tendered her resignation: 

1.       The manner in which the investigation into her complaint was conducted. 

2.       As a result of the outcome of the investigation, which concluded that there was insufficient grounds to substantiate the her complaint, the Complainant felt that her complaint had been “brushed under the carpet” and, with her account of the incident being dismissed, she felt she was being portrayed as a liar. 

3.       The situation was further compounded when the Complainant was notified that, on her return to work from sick leave, a separate process would commence in relation to her having made “unfounded accusations against her colleagues”.

4.       Issues with the appeal process offered, including concerns the Complainant had with the person nominated to hear her appeal.  

Having carefully considered all of the evidence adduced in this regard, I am satisfied that there is significant validity attaching to all of the above factors. The evidence suggests that the Complainant’s initial preference was for the complaint to be dealt with in an informal manner. The evidence shows that the Respondent decided to formally investigate the allegations and, in this regard, I acknowledge that it is completely within the discretion of the Respondent to adopt whichever procedure they consider most appropriate in the circumstances. However, having decided to conduct an investigation it was then incumbent on the Respondent to conduct a thorough and comprehensive investigative process. 

Based on the evidence provided, I find that the investigation process conducted by the Respondent, on this occasion, to be sub-optimal in the circumstances and lacking in the procedural robustness necessary to ensure that a fair and objective process was provided to all parties involved in the investigation. 

This finding is influenced by the following aspects of the investigation process: 

a)       Failure to properly test the evidence provided by witnesses, particularly, where serious inconsistencies in relation to that evidence emerged during the investigation process. 

b)      Failure to interview the Complainant's sister, Ms G, who was also an employee of the Respondent, despite a request to the Investigating Officer, Ms E, to do so. It is clear from the evidence adduced that Ms G had a very relevant contribution to make, particularly in relation to the evidence provided by another witness, Mr D, who, according to the Complainant’s evidence approached her after the incident.  However, in his evidence to the investigation, Mr D denied being present or having any recollection of the incident. In addition, it is noted that another witness, Mr C, who confirmed to the investigation that he was present at the time the incident took place, was never subsequently asked to confirm or otherwise Mr D's presence and/or whether he made the alleged comment to the Complainant. 

c)       In his statement to the investigation, Mr C confirmed (1) hearing the Complainant react to something and saying ”Am I a punch bag?”, (2) seeing the two alleged culprits laughing as they walked away and (3) that the Complainant was in shock as a result of what happened. In a context where the investigation found that there were no grounds to substantiate the Complainant’s claim, it can only be concluded that Mr C’s evidence was dismissed or ignored by the Investigating Officer in reaching her conclusions. As a minimum, this required more rigorous testing of the evidence than was applied. 

d)      There are inconsistencies across the evidence provided to the investigation and none of this appears to have been properly tested. As an example, one of the respondents, Ms B told the investigation that she had a conversation with the Director of Nursing (Ms E) at 6:40pm on the evening of the alleged incident. However, other evidence, including that from Ms E herself, clearly shows that she (Ms E) left the premises at 6:15pm on that evening. There is no evidence to suggest that such inconsistency in evidence from one of the two respondents, whose denial of the incident was, essentially, believed over the Complainant’s evidence, was queried with or further tested by Ms E, in her role as Investigating Officer. 

e)      All of the accumulated Respondent and witness evidence was provided to the Complainant in a letter dated 14 June 2019, which also included the outcome of the investigation. This clearly deprived the Complainant of the opportunity to review that evidence and to insure that any responses she may have wished to make were included in the Investigation Officer’s final deliberations in advance of issuing findings. 

The Respondent’s contention, in this regard, is that the Complainant would have ample opportunity to raise any such issues during the appeal process. While I accept that it is possible to raise fresh evidence at an appeal hearing, I am strongly of the view that the Investigation Officer's failure to provide the Complainant with a final opportunity to respond clearly leaves her investigation was lacking and incomplete. The investigation findings should only issue after a thorough and comprehensive investigative process has been conducted, thereby ensuring that the findings issued are based on a full assessment of all evidence. 

f)        The letter of 14 June 2019, which set out the Investigating Officer's findings, also put the Complainant on notice that the Respondent considered her making of “unfounded accusations of physical assault against two colleagues” to be a ”very serious matter” and one which would be dealt with in a separate process once she returned to work from sick leave. I find the inclusion of this paragraph in the letter of 14 June 2019 to have been wholly inappropriate. If, as the Respondent contends, the process is not concluded until all the stages, including the appeal stage, have been invoked, then there should have been no reference to potential disciplinary consequences for the Complainant until after the appeal stage, if such option is exercised. In the circumstances, I am satisfied that it was not at all unreasonable for the Complainant to have little faith in what any appeal process might deliver. 

Taking all of the above into consideration, I can only concur with the Complainant’s claim that the Respondent’s investigation into her complaint was seriously flawed. On that basis, I find that the Complainant has satisfied the reasonableness test in relation to her claim for constructive dismissal. 

With regard to the issue of the appeal, I am satisfied that it was not unreasonable for the Complainant to seriously doubt that, unlike the investigation, the appeal process would provide her with a fair, objective and unbiased process. In addition to the points made at (f) above, which seriously undermined the credibility of any appeal process in her eyes, the Complainant was also not unreasonably influenced by the fact that the nominated Appeals Officer was a proprietor of the business and, more particularly, the spouse of the other proprietor, who in turn, had sat in as notetaker on all interviews carried out by the investigating officer during the investigation process. 

In conducting workplace investigations of this nature, it is imperative that careful consideration be given when choosing Investigating Officers, Notetakers and Appeals Officers in order to ensure that no bias and/or perception of bias exists in relation to those appointments. Without prejudice to the bona fides of the two proprietors in this case, their involvement in this process created a very clear presumption of bias, against which it wholly reasonable for the Complainant to conclude that she may not receive an unbiased and objective outcome. 

On that basis, I find that it was not unreasonable for the Complainant to decline the offer of an appeal. In addition, I find the Complainant’s decision not to engage at the appeal stage does not, as the Respondent contends, disqualify her from claiming constructive dismissal. 

In conclusion, taking all of the above into consideration, I find that, in a context where (1) the investigation process had clearly failed the Complainant, in terms of providing her with a thorough and comprehensive investigation of her complaint, (2) she was under threat of being taken through a disciplinary process based on the findings of the flawed investigation, (3) on her return to work she would be required to work with the two colleagues involved in the incident, in circumstances where their evidence had been preferred to that of the Complainant and (4) the evidence provided to this hearing by the Complainant clearly showed the extent to which the entire process had impacted on her, both from a personal and professional perspective, it was not unreasonable to conclude that she could not return to work with the Respondent.

Consequently, taking all of the above into consideration, I find that the Complainant’s claim of constructive dismissal is well founded.

Redress:

In all the circumstances, I am satisfied that the only appropriate form of redress in this case is compensation. Consequently, having carefully considered the situation in relation to compensation, including the submissions made by both parties in this regard and taking into consideration all relevant factors such as periods uncertified sick leave and the date the Complainant took up her new employment, I find compensation in the amount of €7,500 to fair and reasonable in the circumstances.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s claim of constructive dismissal pursuant to the Unfair Dismissal Act 1977 to be well founded and I award her the sum of €7,500.00 in compensation.

Unfair Dismissals Act

Constructive Dismissal