Complainant

Respondent

Anonymised Parties

Medical Secretary/Office Manager

Medical Practice

Act

Complaint Reference No.

Date of Receipt

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

CA-00041165-001

20/11/2020

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

CA-00041166-001

20/11/2020

I have exercised my discretion to anonymise the parties based on the sharing of sensitive medical information that is central to determining the matter before me.

Allegations have been made that Dr A assaulted the Complainant. The Respondent denies that this is so as Dr A had an existing injury that was compounded by what had occurred(a physical tussle to hold onto a file) and required medical attention arising from that incident. Dr A alleges that in fact the Complainant was aggressive towards her and grabbed the file from her without cause, jolting her arm. In addition to this injury Dr A also has an underlying medical condition which is debilitating.

The Complainant has alleged that she required medical treatment arising from what she believes to be a very traumatic event.

Allowing for the fact that both Complainant and Dr A have shared sensitive medical information, I am exercising my discretion to anonymise the parties. 

The Complainant stated that her work environment was stressful and haphazard for many years. The work pressure at times was extreme. It could give rise to work overload that was compounded by a very high level of staff turnover in the practice. The Complainant stated that in January 2020 a very serious incident took place that she alleges was assault where she was hit with a file and verbally abused. This was the final straw that broke the relationship of mutual trust and confidence along with the failure of the Respondent to fairly investigate the matter.

The matters complained off according to the Respondent are grossly distorted. What in fact happened was a tussle over a file, caused by the Complainant, where she refused to hand over a patient’s correspondence and then grabbed the paper, causing injury to Doctor A. The Complainant was asked to assist Dr A and refused. The Complainant made it impossible for her grievance to be heard. She failed to attend a medical when requested to do so and alleges that the Company cancelled it. She reacted to a written warning being issued against her and that led to her making a complaint against Dr A. It was the unacceptable conduct of the Complainant that created this dispute and not that of Dr A or the other practitioner. The Complainant’s own account is inconsistent and untrue. She alleged that her role was advertised, and it was not. She alleged that the Company cancelled a medical it had requested which is clearly not the case. The Complainant would simply not attend at meetings called to investigate her complaint and frustrated the process. The Respondent cannot be held to account based on the unreasonable behaviour of the Complainant who of her own accord resigned from the Company.

On or about the 27th of January 2020 the Complainant stated that the following occurred:

“I was seated at my desk, I took the papers and I put to them to the left side of my keyboard. I turned to speak to Dr A, who was standing, saying that I was upset about M and Dr A  turned on me, used profane language (f**k off) and leaned over me and grabbed the papers and hit me violently on the left hand with the papers, cursing at me again. Her own patient who was seated in full view witnessed the incident. This patient actually commented to me ‘You need to stand up for yourself’. Any physical injury Dr A is claiming was self-inflicted when she hit me”

The Complainant stated that she raised a grievance with her direct report who is married to Doctor A.

Her direct report stated that he spoke to the doctor who it is alleged assaulted the Complainant and that it was denied that any assault occurred.

The Complainant submitted several contemporaneous text messages that repeat that a file was grabbed from her and then she was slapped on the hand with the file.

The Complainant stated that this incident while extreme was not the first time that she felt intimidated and not safe while at work. She stated that her boss could be blunt and at times used offensive language towards her.

After this incident, the Complainant is absent from work with stress related symptoms that she attributes to her working environment.

 She wrote to her superior on the 9th of February 2020:

Dear

I refer to your letter your dated 5th February 2020. I wanted to reply in writing as I do not

feel comfortable attending a meeting unaccompanied. I wish to clarify some discrepancies in

your letter.

On Monday 27th January, in the absence of Dr A’s secretary on sick leave, I assisted

the temporary replacement, A, with her clinic on being asked to do so by Dr

A who called the office prior to attending for her clinic. You did in fact have a clinic

yourself that morning from 10.00a.m. to 12.30p.m. with 8 claimants attending, 2 nonattendees and one cancellation.

A is not fully trained on the system and was having difficulty in particular with

the patient billing and credit card machine. I did not flatly refuse to carry out any instructions

or refuse to help A. A can verify this as she was called in to Dr A

office during her clinic where Dr A specifically asked her was I assisting her and she

told her I was being very helpful. A told me this herself.

Dr A approached me some time during the morning with a file of papers asking me to

make an appointment for a medicolegal case. I said I would when I had dealt with the large

volume of my own work (your work) which was on my desk which included post, cheque

payments and emails from Friday 24th and Monday 27th January. There was no refusal or

difficulty from my end.

I was seated at my desk, I took the papers and I put to them to the left side of my keyboard. I

turned to speak to Dr A, who was standing, saying that I was upset about M and

Dr A turned on me, used profane language (f**k off) and leaned over me and grabbed

the papers and hit me violently on the left hand with the papers, cursing at me again. Her

own patient who was seated in full view witnessed the incident. This patient actually

commented to me ‘You need to stand up for yourself’. Any physical injury Dr A is

claiming was self-inflicted when she hit me.

18

I did not touch Dr A in any way and I am deeply upset that you are insinuating that

this incident was my fault. You were not a witness to the incident and I believe this now

clarifies what actually happened, it is the truth.

I left the office as I was extremely upset and shocked. I was physically and verbally abused

by Dr A all because I mentioned my colleague’s name.

When I returned you were insisting that I go into your office and I was unwilling as I wanted

to take advice and I also wanted to be accompanied. At that time you were very angry and

you also used profane language to me telling me to ‘Get your f**king Solicitor in here for a

meeting right now’. I retrieved my lunch bag and you left the office with me to the main

entrance where we had that full conversation, in spite of being totally shocked by what had

just happened to me, I have total recall of what we discussed.

Later that day I sought legal advice and was advised not to attend work on Tuesday 28th

January. I messaged you at 8.30a.m. saying I would not be in work and you replied I needed

to attend, I advised I was attending my GP where I was signed off for a week quoting ‘work

related stress’. I was extremely upset and distressed.

I telephoned you at 1.15p.m. on the 28th advising you that I had a medical certificate for one

week. I asked you how was the situation going to be resolved, you answered you did not

know.

I said that I would accept an apology from Dr A and you said that she tried to phone

me to apologise, I had no missed calls from either your mobile, Dr A’s mobile or your

house or the office phone. I said to you that I would leave it with you to discuss the apology

with Dr A. You later messaged me telling me to take my GP’s advice and you would

see me on Tuesday (4th February). In my sudden absence on sick leave I do not believe it

was my responsibility to arrange cover for both of your clinics.

On Tuesday 4th February I attended work and as I entered the office I said ‘Good Morning’ -

you ignored me. Later, when you were seated at M’s desk you asked me to assist you

with a bill, which I did.

At 12.15p.m. you asked me what time I was going out as you wanted a meeting with me, I

said I would like someone with me. You aggressively quoted some trade union pre condition

whereby I was not entitled to have someone with me. I said I still wanted someone to be with

me. You would not agree to this. I did not want to be exposed to any further abuse or verbal

unpleasantness. I asked you to apologise for what happened on the 27th and you refused,

walking away saying ‘that’s it then’.

On the 10th of March 2020, the Complainant’s Solicitor writes to the Respondent as follows:

Dear Sirs

We act for the above named who is absent from the workplace by reason of work related

stress.

Our client instructs us that the cause of this stress is the treatment she has received in the

workplace, particulars of which are set out in our client’s letter to you of 9th February 2020.

Our client continues to suffer from the stress induced by incidents in the workplace, in

particular the use of profane and abusive language to our client by you and an assault which

our client suffered on the 27th January 2020.

For the avoidance of doubt we enclose herewith a copy of our client’s letter.

As you know our client is entitled to work in a safe place of work and with dignity, free from

concerns of abusive, inappropriate treatment and you are legally obliged to ensure this

environment.

Accordingly, we should be obliged to receive the following:

1. A written contract of employment

2. A staff handbook or procedures by which she may have her grievances fairly dealt

with

3. A safety statement

Our client has provided loyal and professional service for some fifteen years, accordingly, we

should be obliged to hear from you or your legal representative as to how our client will be

able to return to a safe place of work once her health permits. Furthermore we call on you to

confirm that our client will be paid for all weeks she is absent from the workplace as a direct

consequence of the treatment she has experienced.

You might also confirm that an independent external person will be appointed to deal with

our client’s grievances fairly.

Should you fail to reassure our client on the above concerns we have instructions, and fully

intend, to bring the appropriate legal proceedings to vindicate and uphold our client’s

contractual, statutory, and constitutional rights.

Please note if we are obliged to do so we will rely on this letter to fix you with the legal costs

arising from any and all steps necessary to resolve these matters and protect our client.

We await hearing from you.

On or about the 18th of March 2020 the Complainant is asked to attend a medical. She stated that it was cancelled on the day of the appointment and never rearranged.

The Complainant resigns from her position on the 31st of August 2020 and citing at the hearing the reason being that her working environment was intolerable and continuation would pose a serious risk to her health and wellbeing.

The Respondent denies the Complainant’s account and on the 5th of February 2020 writes to the Complainant:

I wish to write to you about a number of incidents which occurred on the 27th of January 2020.

As Office Manager it is part of your responsibility to ensure that the smooth running of the practice. In (secretary’s) absence I had asked A if she could help out on Monday and Wednesday and I agreed with Dr A out of courtesy she would formally ask you to help (secretary). This obviously should have been straight forward as I had no clinic that morning and very surprised and taken aback with your response when you flatly refused to carry out these instructions which were very reasonable in nature and part of your employment.

I had intended to speak to you about this later that day but a serious incident, which also involved you occurred. I am informed by Dr A that when she sought specific correspondence from you, that it was not available which was incorrect and that you were very rude and uncooperative which was completely unacceptable. Indeed on ascertaining that the correspondence was available and while trying to retrieve same Dr A suffered physical injuries to her badly injured arm which caused her understandably both pain, distress and anxiety.

You would not wait to discuss the matter and we had a very unsatisfactory conversation…

The Respondent stated that the allegations as given in evidence are grossly distorted and did not occur.

The Respondent contends that following the incident on the 27th of January 2020, he attempted to investigate the matter; however, the Complainant refused to attend a meeting with him.

This pattern of refusal continued and frustrated any possibility of investigating her complaint.

The Complainant in fact refused to attend a medical complaining that a data breach had occurred.

The Respondent did not advertise her role as stated by the Complainant, this position was advertised to meet the administrative requirements of another Doctor.

At the first day of hearing the Complainant’s direct report stated that he had investigated the matter and concluded that the Complainant had failed to carry out a reasonable instruction. He issued a warning to detail that this conduct was unacceptable, and that Dr A had hurt her arm in the tussle that occurred about a patient’s correspondence.

On the morning of the alleged incident, he was travelling to work along with Dr A, and he overheard a phone conversation that was abusive and disrespectful. Dr A rang the Complainant and asked her could she help her with her workload that day. It is alleged that the Complainant stated that under no circumstances would she do any work for Dr A.

At the end of her clinic Dr A requested the Complainant to give her a letter from a patient requesting an appointment. It is alleged that the Complainant aggressively refused.  A second time it is alleged that Dr A again requested the correspondence; and when the Complainant ignored this request, Dr A reached down and picked up the papers from the Complainant’s desk. It is this action it is alleged that provoked the Complainant to grab the papers from the hand of Dr A and shouted No at her.

Dr A on the 3rd day of hearing stated she suffered from a medical condition and was limited by that condition in terms of strength and physical agility. She stated that in fact she suffered an injury arising from the incident.  At the time of the incident Dr A was 71 years of age.

There is a direct conflict in evidence between the parties and no independent witness has been called.

Murdoch and Hunt’s Encyclopaedia of Irish Law (2016 edition) defines Constructive Dismissal as follows:

A dismissal which is inferred where it is reasonable for the employee to terminate the contract of employment because of the employer’s conduct: Unfair Dismissals Act 1977 s.1. The Employment Appeals Tribunal has recognised two forms of constructive dismissal: (1) where the employee is entitled to terminate the contract of employment and does so; this entitlement is not conferred by the 1977 Act, but rather recognised by it; and (2) where it is reasonable for the employee to terminate the contract of employment and he does so: Fitzgerald v Pat the Baker [1999 EAT] ELR 227.

The type of conduct which can give rise to a constructive dismissal cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and employee: Joyce v Brothers of Charity [2009 EAT] UD407/2008; [2009 EAT] ELR 328.

The resignation of a manager whose position has been undermined may amount to a constructive dismissal: O’Beirne v Carmine Contractors [1990] ELR 232. A constructive dismissal may arise where an employee leaves because the employer (a) fails to relieve a bad atmosphere in the workplace: Smith v Tobin [1992 EAT] ELR 253; (b) fails to comply with a requirement of the Health & Safety Authority: Burke & Ors v Victor Collins Enterprises Ltd [1993 EAT] ELR 37; or (c) deals inadequately with complaints of bullying and harassment: Allen v Independent Newspapers [2002 EAT] ELR 84; Monaghan v Sherry Brothers Ltd [2003 EAT] ELR 293.

The Unfair Dismissals Act 1977 as amended at section 1 defines Constructive Dismissal as:

(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

This statutory definition in turn has been elaborated upon to include two tests:

Redmond on Dismissal Law (Bloomsbury Professional 3rd Ed. 19.04):

There are two tests contained in the statutory definition, either or both of which may be invoked by an employee. The first is ‘the contract’ test where the employee argues ‘entitlement’ to terminate the contract. The analysis of contractual entitlement in Chapter 21 is relevant here. Secondly, the employee may allege that he or she satisfies the Act’s ‘reasonableness’ test. In some circumstances, an employer may have acted within the terms laid down in the contract of employment, but its conduct may be nonetheless unreasonable.

In law there is a contract test and a reasonableness test.

In a wrongful dismissal action Berber v Dunnes Stores [2009] IESC 10 the Supreme Court approved of the definition of the mutual obligation of trust and confidence as set out in Malik v Bank of Credit and Commerce International S.A. where the conduct objectively considered is likely to cause serious damage to the relationship between employer and employee. This is based on what the Supreme Court states was:

Implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.

Has a fundamental breach of the contract occurred in this case? Has the behaviour of the employer been so unreasonable as to justify the action to resign as the employee could no longer have trust and confidence in her employer.

The code of practice S.I 146/2000 concerning the investigation of a grievance states:

2.     While arrangements for handling discipline and grievance issues vary considerably from employment to employment depending on a wide variety of factors including the terms of contracts of employment, locally agreed procedures, industry agreements and whether trade unions are recognised for bargaining purposes, the principles and procedures of this Code of Practice should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues.

General Principles

1.     The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available.

On the facts there is a grievance and a counter perspective that the Complainant has been abusive and aggressive.

The necessity principle at times can give rise to a situation where an investigation is not independently carried out.

A grievance has been raised by the Complainant that is very serious; on the facts the investigation of that grievance has not been independent and could be viewed as tainted with bias.

The test to be applied is objective as detailed in the Arthur Cox Yearbook 2012:

Fennelly J noted that the principles to be applied by the courts in adjudicating on allegations of objective bias had been well-established for a number of years and, in particular, by two decisions of the Supreme Court delivered within two months of each other in 2000: Bula v Tara (No 6) 19 and Orange Communications Ltd v Director of Telecoms (No 2). 20 In Bula, having reviewed the law, Denham J (as she then was) held, at p 441, in favour of a test based on reasonable apprehension of bias:

... there is no need to go further than this jurisdiction where it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the Applicants would not have a fair hearing from an impartial judge on the issue. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test – it invokes the apprehension of the reasonable person.

The grievance as set out complains of the behaviour of both Dr A and the other Director of the practice.  Applying the test as set out by the Supreme Court, there is a reasonable apprehension of bias as one of the parties whom allegations are made against is also determining the findings of the grievance.

The mutuality of trust and confidence between employee and employer is underpinned by procedures that endeavour to be fair and objective. The process conducted by the employer was not objective and tainted as there were reasonable grounds based on an objective test that the process could be tainted by bias.

The two Doctors whom the Complainant alleges have been abusive to her are also husband and wife.

In Berber the Supreme Court detailed a test that looked to consider the conduct of both employer and employee as a whole when assessing if constructive dismissal has in fact occurred; and the following 4 principles are also relevant in this case:

1.       The test is objective

2.       The test requires that the conduct of both employer and employee be considered

3.       The conduct of the parties as a whole and the accumulative effect must be looked at

4.       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.

On the facts there was a very high level of turnover at the practice; the Complainant alleges that this was because of a difficult working environment.

The Complainant stated that over many years she was subjected to undermining behaviour and verbal abuse by the two Doctors. She stated that due to financial challenges at times she was late in being paid.

The burden of proof rests with the employee to show that it was not reasonable for her to put up with the conduct of her employer.

I find the evidence of the Complainant credible that the circumstances that she worked in at times was chaotic and very difficult. It would also appear that both parties were capable of being abrasive and difficult.

The nature of an employment contract is that it is a contract of service and not for service. While the employee has a clear obligation to complete the tasks assigned to her; the employer also must conduct themselves in a manner that is civil and respectful.

While I accept that the Complainant at times was difficult, I also find her evidence credible that she was treated in a less than respectful manner.

However, there is an inconsistency in the Complainant’s evidence where she stated that she got on well with her immediate manager the principal of the business. This was also stated in her submission. In her letter to her employer dated 9th of February 2020 and opened in evidence she wrote:

Doctor Anonymised

you and I have worked well together over the years. In particular we have worked together to make Dr A happy and to ensure that her practice is run efficiently. I have been very loyal to you and I am so sad that it has come to this situation, an indirect situation which has affected our working relationship. I cannot recall any time where you have complained about my work practices or performance as your employee. In fact I have played an integral part in the successful and professional running of your business. I refute your point that there was a breach of conduct on my part, in fact that has been a blatant breach of welfare, health and safety regulations by you to me, your employee. Your lack of concern for me over this incident and subsequent aggressive behaviour is extremely hurtful to me. Yours sincerely ___________ Complainant anonymised Encl. 1 - Medical Certificate of 28/1/202

The statements that she found the principal director difficult and alleges that he also was abusive over the years and attempted to move her out, is not supported by this this letter.

Both parties rely on contemporaneous letters that record from their perspective what has occurred.

This is a sad situation as both the Complainant and the Respondent appear to have worked well together for 15 years.

The Complainant under oath details an event that she found shocking and disturbing.

On the facts it was a traumatic, for both parties.

Without any determination of blame, the facts do support that this incident was serious.

It is also a fact that arising from the relationship between the two directors, it is reasonable to apprehend bias. That apprehension could have been allayed by an independent investigation of what is a serious allegation. That did not occur.

There is no reliance by the employer on any previous disciplinary issues that support the view that the Complainant was difficult.

A fundamental contractual breach arises where implicit in the contract is a term that a serious allegation will be fairly investigated and that does not occur. In fact, on the evidence the account of one of the protagonists was preferred over the Complainant’s when that account was not independently verified. It could have been, as a patient had witnessed what had occurred. The procedures followed by the Respondent in this case were seriously deficient, which do go to the heart of the contract and the mutual obligation of trust and confidence that both parties must honour. On the facts the failure to apply fair procedures and conduct an independent investigation in these circumstances does justify the action to resign.

The relationship has broken down; and it would not be appropriate to reinstate or re-engage under these circumstances.

The Act does provide that all the circumstances of a particular case should be considered, and regard had both to the employee’s behaviour and of the employer. The working relationship does appear to have been good for a long period. While the Complainant cities many past incidents as part of this complaint, none of those were formally raised by her as a grievance. This is a small practice and at times could be pressurised. The facts of this case demanded an arm’s length investigation, that did not happen. However, the facts do not unequivocally create an impression that the Complainant was co-operative.

The task is to determine a fair outcome based on the facts and in this case, I have had regard to the fact that the Complainant has found alternative employment. However, she has suffered financial loss and based on the contractual breach relating to Trust and Confidence by not conducting an independent investigation, I award €14500.

CA-00041165-001 & CA-00041166-001

This is one complaint as the Complainant has only worked for this employer continuously.

I determine that the Complainant was unfairly dismissed.

The Act does provide that all the circumstances of a particular case should be considered, and regard had both to the employee’s behaviour and of the employer. The working relationship does appear to have been good for a long period. While the Complainant cities many past incidents as part of this complaint, none of those were formally raised by her as a grievance. This is a small practice and at times could pressurised. The facts of this case demanded an arm’s length investigation, that did not happen. However, the facts do not unequivocally create an impression that the Complainant was co-operative.

The task is to determine a fair outcome based on the facts and in this case, I have had regard to the fact that the Complainant has found alternative employment. However, she has suffered financial loss and based on the contractual breach relating to Trust and Confidence by not conducting an independent investigation, I award €14500.

Trust and Confidence