Complainant

Respondent

Parties

Barbara  Corrigan (Dillon)

Health Service Executive (Sw Health Board)

Representatives

JRK Business Support & Employee Advocacy Services

 HSE HR

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-00045141-001

10/07/2021

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

CA-00045141-003

10/07/2021

The Complainant, Mrs Barbara Corrigan (Dillon) commenced employment with the Respondent on February 1st, 2002, and was continuously employed for more than 19 years prior to the termination of her employment on May 25th, 2021 when she resigned, and complains that she has been constructively dismissed.

Mrs Corrigan, also referred to as Ms Dillon, was employed as a Senior Clinical Engineer in Naas General Hospital when her employment terminated.

On July 10th, 2021, she submitted complaints to the WRC under Section 8 of the Unfair Dismissals Act 1977 and Section 77 of the Employment Equality Act 1998. This latter complaint was withdrawn at the hearing.

(A complaint under Section 13 of the Industrial Relations Act 1969 is the subject of a separate recommendation).

The complainant’s employment, apart from her proficiency and accumulated experience has been otherwise unremarkable, but for two significant periods of illness absence.

The first of these absences was for a period of three months, from November 2015 to the start of February 2016 due to “acute stress”. The second period of absence commenced on June 5th, 2020 and continues to date.

She had struggled to remain at work, the previous day, because of her manager’s attitude towards her work and she was anxious as a result and sought medical advice. In addition to her current absence the period of three months absence in 2015 can also be attributed to the same alleged conduct by her manager.

The chronology of events (which is not in dispute between the parties) is as follows.

On July 31st the complainant indicated her inability to return to work due to the conduct of a manager and wrote to HR to this effect. Re replied saying the complaint would be assessed.

On August 13th the occupational health department concluded that she was not fit to return to work but could engage with management. The occupational physician recommended that the HR Manager discuss the complainant’s concerns with her directly.

On August 31st a meeting took place and the complainant met HR which requested details of her complaint against her manager.

There was also reference to attempting to deal with the matter by means of an amicable dispute resolution process. In September there was a follow-up meeting, and the complainant submitted a document on September 14th which was deemed to contain insufficient detail for the purpose of a more formal process.

In October there was a further review with occupational health, and she was again deemed unfit to return to work.

On November 26th her representative made a submission and the respondent indicated that the nature of the complaint did not allow it to be dealt with under the Bullying criteria, but it could be pursued as a grievance.  Attention was drawn in particular to the lack of specifics.

In January there was a further review with occupational health during which she was deemed unfit to return to work. The following month her representative escalated the matter to the HR Director of the HSE who declined to engage on the basis that he was not an accredited representative as defined in its policies. Then on May 24th the complainant resigned.

The complainant states that she felt compelled totender her resignation with immediate effect on May 24th, 2021.

She gave direct evidence on oath to the hearing.

She outlined the background to the initial July 31st complaint and the efforts of one of her managers to dissuade her from seeking a formal investigation. That manager said he would speak with the respondent about the complaint.

She said that she sought a copy of the screening report on three occasions, and it was the letter received from the respondent on May 11th that she saw as inviting her to resign. It confirmed to her that the respondent did not care about her and was only concerned about protecting its managers.

This was reinforced by the failure of the respondent to write confirming acceptance of her resignation.

In cross examination she confirmed that she had worked with the manager against whom she had made the complaint for twenty years but said that things between them only began to deteriorate around 2015 and 2016.

She also stated in response to a question as to why she had not invoked the grievance machinery that she did not know why she had not done so and that she had declined mediation as she did not want to be in the same room as the person against whom she had made the complaint.

(End of direct evidence and cross examination)

Shealleges that herdecision resulted directly from hertreatment intheworkplaceoveralongperiod andthefailureoftheemployer to address hersituationleft her with nochoice butto resign.

One of the most striking features of the exchanges is that at a point the complainant is dealt with in quite a hostile fashion in that she is alternately criticised and rebuked for not dealing with matters informally. In contrast her manager is commended for his reported willingness to do so.

What is missing is any attempt to establish the facts and deal with them accordingly.

The HR Manager’s report/letter makes no attempt to support his statement that Ms Dillon’s complaint does not fit the definition of bullying.

There is no evidence that he conducted any investigation as required under the HSE Dignity at Work Policy. The fact is that this simply did not happen. The Dignity at Work Policy was not followed, and the way Ms Dillon’s complaint was dealt with was not in keeping with the Dignity At work Policy.

Moreover, the behaviours complained of, and stated to have been endured by several colleagues, past and present, were not pursued in the vigorous manner prescribed in the Policy.

Based on what was produced after six months and the evident nature of the multiple exchanges involved, one could be forgiven if concluding that the overriding imperative was to contain, and suppress Ms Dillon’s complaints, rather than effectively examine them in order to determine what issue(s) needed to be dealt with, if any.

In this context it should be noted that there were inappropriate interventions by the complainant’s managers.

The fact is that the recorded response of the alleged perpetrator of inappropriate/bullying behaviour suggests at least partial acceptance that behaviours complained of did or may have occurred.

The fact is that Ms. Dillon resorted to seeking support through the EAP process and in addition attended, and continues to attend, counselling.

Based on the chronological listing of exchanges, there is little evidence to suggest that the actual impact on Ms. Dillon’s wellbeing was considered as an indication that there was a basis for her complaint. Her six-page elaboration of September 14th was not properly considered or addressed.

Despite the warning indicators, the response to Ms Dillon’s complaint was wholly inadequate in terms of the need to secure and maintain a workplace that provides employees with “…a safe working environment which is free from all types of bullying.” and harassment, as properly demanded by policy.

One important aspect of the inadequacy of management’s response is the fact that Ms Dillon’s plea to have her salary maintained while matters were addressed was completely rejected, without any evidence that her plea was properly or fully considered.

The HSE Critical Illness Protocol prescribes the duty of management in informing an employee of a management decision under this protocol wherein at Section 2.2 it states that a decision should be communicated in writing “…summarising the matters that he or she has considered. These reasons should demonstrate that the manager has considered all relevant considerations and has not been influenced by irrelevant considerations.” The decision issued to Ms Dillon on November 11th, 2020, cannot be said to have met this requirement.

The complainant has set out the details of her complaint in her submission to the WRC. In summary, she is stating that she was bullied by her manager; a manager she had for over 20 years. She indicates that the behaviours complained of, while for the duration of her career at Naas General Hospital, arose particularly in the final twelve months.

Shesubmitted acomplaint totheHR Manager on July 31st, 2020.She submitted a moredetailed complaint onSeptember 14th, 2020.The HR Managerexamined the complaint in detail and carried out a preliminary screening pursuant to the Dignity at Work Policy.

It is acceptedthat this took aninordinatelength oftime, but the Covid pandemic played a part.

The HR Manager's report issued on November 30th, 2020, and concluded that the complaints did not fall under the definitionofbullyingandthatthemattershould beaddressedunderthe Grievance Procedure.

He also indicated that thecomplaints were ofa general nature and lacked detail.

The complainant did not accept his conclusion, sought professional advice, and made an approach to the National Director of HR.

It is important to note that the complainant failed to take up the matter pursuant to the HSE's Grievance Procedure as she had been advised by her managerand shepersisted inseekinganexternal investigationinto the mattersofcomplaint.

When it becameobviousthatshewasnotgoingtoconvince theHSEtoaccedetoherwishes,she resigned herpost.She alone madethatdecision, and theemployer isoftheviewthatthedecision wasanunreasonableone.

The complainant was under review by Occupational Health which deemed her fit to engage with management where she could have taken her issues of complaint under the Grievance Procedure to the Operations Manager.

The Unfair Dismissals Act and the resulting jurisprudencehave set ahighbar in relation to what will justify the terminationby a party of any contract ofemployment.

It is,after all, a breach of a legally binding contract.Where an employer wishes to terminate the employment, there must because,this must be followed by a fair process and finally, the sanction of dismissal must be within the range of reasonable sanctions in relation to the conduct-givingrisetothedisciplinary proceedings.

On the other hand, where an employee wishes to terminate the employment, it is relatively easy for them to do so by simply giving notice of their intention to do so and then resigning and in most, if not all cases, an action for breach of contract is unlikely to arise.

When an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal then that is a different matter. In "Dismissal Law in Ireland" the late Dr Mary Redmond has said (at p340)

"There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer's grievance procedures in an effort to resolve his grievance, the duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed, Conway v Ulster Bank Limited. In Conway the EAT considered that the claimant did not act reasonably in resigning and without first having substantially utilised the grievance procedure to attempt to remedy her complaint. "

The Supreme Court has said that:

"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. "

Per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61

In such cases, the critical issue is the behaviour of the employer, although the employee's behaviour must also be considered. Generally, this reference to the employer's conduct is taken to mean something that is so intolerable as to justify the complainant's resignation and something that represents a repudiation of the contract of employment.

Finnegan J went on to say:

"There is implied in a contract of employment a mutual obligation that the employer and 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. The term is implied by law and is in incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer, what is significant is the impact of the employer's behaviour on the employee rather than what the employer intended.

Having regard to the mutuality of the obligation the impact of the employee's behaviour is also relevant. The test is an objective one; if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise."

It is notable that the test isobjective and that it requires aconsideration oftheconduct of both employers and employees.

Itshould be asignificant breach going to the root ofthe contract between the parties in order to justify a constructive dismissal.In practice the majority of legal representativeswould advocate that isshouldbe avoidedby employees atpracticallyeverycost.

It is recommended that the employee should invoke the Grievance Procedures provided by the employer Conway v. Ulster Bank Limited UD 474/1981 where the employee was unhappy with the transfer and though this transfer was held to properly only be exercised with a view to personal rights, because she had failed to invoke the grievance procedure, she was unsuccessful in her claim.

The Labour Court regularly confirms the approach taken by it in constructive dismissal cases. In Killinarden Family Resource Centre Company v. Byrne, the Court cited both Western Excavating (ECC) Ltd v. Sharp3 and Conway v. Ulster Bank with approval, and cited Beatty v Bayside Supermarkets 4in relation to the general proposition that the employee should follow the internal procedures, though it also distinguishes Allen v Independent Newspapers5. In Supermacs Ireland Limited v Sarah Ryan 6the Labour Court cites with approval Conway and Beatty.

It is the employer's position as supported by the case law that the complainant should have invoked the Grievance Procedure as advised by the HR Manager and not persist with her demand for a full investigation into the complaints as submitted.

The respondent has set out a good summary of the law on constructive dismissal in its submission above, drawn from previous WRC decisions and statements of the law and this describes well the test applicable to the complainant’s case.

As noted above the facts are not in dispute.

The complainant is very critical about how the respondent processed her case and at least in respect of one element of this, the initial delay, the respondent agrees that the delay was unacceptable and has apologised.

That apart, the complainant’s management of her case displayed some evidence of a lack of focus on her own best interests.

She must surely have known that in respect of the original complaint against her manager, that for a complaint of such a relatively serious nature, she would have to provide a degree of detail. This would initially enable her employer to review the matter, and should it proceed, allow any respondent the right to answer it as a matter of fair procedure.

She first made a complaint on July 31st, 2020, and was told it would be assessed. In fact, there was nothing further until a meeting on August 31st at which further details of the complaint were requested.

She submitted a document on September 11th which was again deemed to contain insufficient detail.

Eventually on November 26th her professional representative made a detailed complaint, some four months after she initially raised the matter.

Some days later, on October 30th the respondent concluded that this complaint too did not fall within the bullying criteria (again noting the lack of specific detail) and recommended to her that she should pursue this as a grievance.

A further month passed before she formally rejected this assessment, for various reasons. These included that the respondent’s Dignity at Work policy had not been properly applied.

Quite what the complainant saw as her strategy at this stage is hard to fathom. She had a number of options.

One was to process the original complaint as a grievance as recommended to her by the HR Manager. Another might have been to process the actual conclusions of the HR Manager on her complaint as a grievance.

However, instead she stepped outside the procedures and embarked on what must be regarded as a rather futile attempt to engage the National Director of HR on her issue, which does not require the benefit of hindsight to see as unlikely to ever bear fruit.

By the time the National Director was approached in February 2021 seven months had passed since the matter was first raised, and while the respondent apologises for its contribution to the delay, by that stage the complainant herself appeared to have no clear sense of where how she wanted to take the matter forward, insisting somewhat obdurately that she would do so only on her own terms.

A further consideration, although it is not directly relevant to the complaint of unfair dismissal but may be relevant to understanding the pressure under which the complainant found herself was that somewhat parallel to this narrative, she had applied for but was unsuccessful in getting an extension to her sick pay.

While this featured in the correspondence, I find that it is not relevant to the current complaint.

The screening of complaints is normal and necessary in order to determine how they are to be processed. I have reviewed in detail the HR Manager, Mr Walsh’s conclusions in his letter of November 30th to which the complainant took such strong exception.

In fact, in my opinion, it is well-written and a carefully measured and reasoned document, ironically highlighting the complainant’s consistent rejection of any efforts to resolve the matter as well as pointing out the inadequacy of the detail provided. (Her initial complaint stated merely that the manager in question had been guilty of ‘repeated inappropriate and bullying behaviour’ without taking the trouble to say what this alleged conduct actually was).

There is a regrettable tendency to believe that simply describing something as ‘inappropriate’ will relieve the user of the necessity to explain what makes it so. The complainant must have known that a simple expression of belief on her part that the conduct complained of was ‘a classic case of bullying’ as she described it, would require some more independent verification than simply her belief that it was.

I do not see how Mr Walsh, or any other person in his position could, on the facts before him, have reached any conclusion other than the one he did and the complainant’s reaction appears to reflect a total lack of understanding of the requirements of the procedure which the HR manager, Mr Walsh was obliged to follow and apply. 

Rather than consider Mr Walsh’s response and recommendation on its merits she then proceeded to waste a further period of months on a wild goose chase.

Having predictably failed to make any progress she then resigned, which while it is a matter of great sadness given her long career the narrative preceding it comes nowhere near to grounding a complaint of constructive unfair dismissal.

Her consistent rejection of the processes available to her, and of which it is necessary to make full use to meet the criterial for a constructive unfair dismissal are fatal to her case.  Her statement in sworn evidence that she did not know why she had not done so also falls into this category.

In particular, her letter of resignation displayed no insight into her own contribution to the problems of which she complained, and on which she now relies to ground her case.

For example. she stated that she was ‘certain’ that her complaints ‘will not be investigated or addressed’ even though Mr Walsh offered her the option six months earlier of pursuing them as a grievance, which she decided not to exercise. She may not have understood that grievances too are subject or may become subject to an investigation process.

As an aside, and as a lay adjudicator I will go no further than describe it as troubling that a person certified as medically unfit to work should be deemed medically fit to participate in the demanding and stressful process of prosecuting a grievance and making the difficult tactical decisions about how to do so, and who then resigns a position she has held for twenty years or so.

There may be other reasons why the complainant made poor decisions about the processing of her case but there must at least be grounds for concern as to the contribution made by the state of her health, which was variously described as work-related stress, anxiety etc; not ideal for the making of good judgements about one’s career.

One wonders whether there is a full appreciation even among occupational health specialists of the demands that the process places on a person who is not medically fit for work but who can apparently be deemed sufficiently ‘fit’ to make critical choices in a complaints process.

In any event that does not alter my conclusion on this specific complaint.

The complainant has not remotely met the threshold required by the legal tests set out above and her complaint of unfair dismissal is not well founded, and it fails.

For the reasons set out above the dismissal was not unfair and complaint CA-00045141-001 fails. Complaint CA-00045141-003 was withdrawn at the hearing.

Constructive unfair dismissal