Adjudication Reference:  ADJ-00042923

Parties:

Complaints:

Date of Adjudication Hearing:  07/06/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 8 of the UnfairDismissals Acts, 1977 - 2015,following the referral of the complaints  to me by the Director General, I inquired into the complaints  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant contends that she was unfairly dismissed by way of constructive dismissal.

Summary of Complainant’s Case:

The complainant was employed as a Care Assistant from September 2016 to November 2022.                               She gave sworn evidence summarised as follows:

She started in the employment in September 2016 and worked in or around 39 hours per week.  All was well for the first few months.   In 2017, she had a problem with one other staff member (J) who told untruths about her and he work.  This ended in mediation after she complained to management.   In 2019, she was accused of breach of confidentiality when she told a wife who came to the workplace that her husband was not in work.  In 2021 she was accused of wrongly submitting an AER (adverse event report).  An investigation subsequently she was not in the wrong.  The complainant also felt singled out by one manager (V) who accused her of always being on her phone.          She was accused of having a problem with another staff member (B) who she witnessed breaching personal care regulations.  She was asked if she would engage in mediation but declined. In July 2022, she was given a number of grievances lodged by staff members against her.  This caused her major trauma resulting in her GP advising her to leave the employment.  She felt hounded by the employer who she alleged was about to embark on an unnecessary investigation which she discovered was about to take place a year before she lodged her complaints.  A vexatious group grievance was lodged against her in September 2021 but this was not given to her until 21st July 2022.   She submitted her response in early August 2022 but did not receive any reply or acknowledgement from the employer.  She lodged a number of grievances in August and September 2022 but apart from an acknowledgement and a query regarding one date, no action was taken.                  After she received the email and the vexatious group grievance she went out on sick leave due to stress.  She felt extremely pressurised by the employer seeking to force her to give information and ultimately could no longer stay in the employment.

In cross examination, the complainant agreed that there were 15 grievances lodged against staff by her and that she had been given 6 or 7 grievances staff lodged against her.  She had concerns about some things she witnessed, but she was not going to indulge in hearsay evidence.  She stated that she was hassled on a regular basis to give information about some staff.   She went on sick leave on 22 July 2022 and three months later her pay stopped.  She had no option but to resign.    

Summary of Respondent’s Case:

The respondent’s representative stated that as per the Trust in Care policy, the respondent was obliged to investigate any alleged wrong doing.  The respondent did inform the complainant that that she would not be forced to give any hearsay evidence nor would the respondent rely on same.     The fact of the matter is that the complainant had numerous complaints against individuals in the employment and they had numerous complaints against her, but she was not willing to give the necessary information for investigation.  He stated that the grievances the respondent received about the complainant and another staff member were received in September 2021 but were not acted upon as one of the parties was out on sick leave.  He noted that the complainant had not copied her trade union representative on her letter of resignation.  He concluded that the complainant therefore resigned in haste and did not avail of the professional advice of her union.  

Findings and Conclusions:

The definition of constructive dismissal as provided for in the Unfair Dismissals Act 1977 (as amended) is:

“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”.

In a claim of constructive dismissal, the onus of proof rests with the Complainant to prove that the conduct of the employer was so unreasonable that that the employee cannot fairly be expected to put up with it any longer, and the employee is justified in leaving.

In such cases the critical issue is the behaviour of the employer, although the employee’s behaviour must also be considered. Generally, the criterion regarding the behaviour of the employer 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.  In effect the question is whether it was reasonable for the employee to terminate the contract on the basis of the employer’s behaviour.

Where grievance procedures exist they should be followed.  In Conway v Ulster Bank Ltd the Employment Appeals Tribunal  considered that the claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’.   At the very least an employee should communicate his or her grievance before resigning.

In this instant case, the complainant was the subject of many grievances by other staff which were received by the respondent in September 2021.  The respondent failed to commence any investigation into these until the complainant submitted grievances against a number of staff members one year later.  So the complainant did attempt to have her grievances investigated.  For understandable reasons, the respondent wished to examine any wrongdoings the complainant witnessed and I note the complainant did not wish to engage with them on what she feared would become a ‘hearsay’ situation.  The whole saga of the complaints and counter complaints is a regrettable and serious situation which would have merited early intervention.  While I find the respondent did act in an effort to get to the truth of the matter, the fact that they did not bring the 2021 complaints to the complainant until a year later is unacceptable.   The entire matter should have been investigated at an early stage and the bringing of the complaints/grievances to the complainant after they had them for a year mitigated against a fair and open procedure.  In the circumstances, given the stress caused to the complainant in that context I find that she had no option but to resign her employment.    I uphold her complaint that she was unfairly dismissed by way of constructive dismissal.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have decided that the complainant was unfairly dismissed and I award her the sum of €6,500 compensation for loss of earnings.

Dated:   17/08/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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