Complainant

Respondent

Parties

Sheila  Foley

Wishmill Ltd Friary Court Dental

Complainant

Respondent

Anonymised Parties

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Representatives

Claire Bruton BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00042059-002

19/01/2021

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

CA-00042059-003

19/01/2021

The Complainant commenced employment with the Respondent in February 1992.  She worked six hours per week and was employed as a Practice Manager. 

In 2008 the owners of the dental practice amended the duties of the Complainant to that of bookkeeper and she worked six hours per week.  The practice was then sold in March 2020 to the current Respondent. 

The Complainant continued to hold the role of Practice Manager with primary responsibility for book- keeping within the practice.  Following the acquisition of the dental practice by the Respondent in June 2020 the Respondent recruited a Practice Nurse who was to act as Business Manager and who was engaged to develop the business into the future.  Arising from this appointment disputes arose in relation to crossover of duties and titles between the Complainant and the Respondent that ultimately led to the Complainant resigning her position.  In her complaint form, the Complainant listed her complaints as follows:

·       CA-00042059-002: Complaint under section 7 of the Terms of Employment (Information) Act 1994, alleging that she was not notified in writing of changes to her terms of employment

·       CA-00042059-003: Complaint under section 8 of the Unfair Dismissal Act 1997 alleging that she had to leave her job due to the conduct of her employer and others at work (constructive dismissal)

The Respondent is a dental practice who took over the business in June 2020.  The Respondent denies all allegations.

CA-00042059-002 (Terms of Employment (Information) Act 1994):

The Complainant submitted that her role prior to March 2020 was credit control, payroll, income and recording same, HR, looking after insurance, garda vetting, ordering stationary, paying suppliers and many other duties that arose.  She stated that after receiving the pandemic payment she returned to work on the 22nd May 2020 under the new management.  She stated that from this date until about the beginning of September, her work included receiving and answering emails, manually doing up income for the practice and inputting same into work sheets, where she would compare with income on new practice appointments book.  She submitted that she was also engaged in emailing payroll department on employee hours worked, monthly invoices to dentists.  She stated that she received far fewer emails from suppliers over the next few months and that these emails had been redirected to the Business Manager.  She submitted that around the beginning of September she felt that she was being excluded from what was happening at the practice.  She stated that most communication from the Respondent stopped around that time.  She submitted that her role in the practice was diminishing, with less work to do, and that around that time she could complete her work in three hours, while she pointed out that she was being paid for six hours, as she had worked up time in lieu.  The Complainant submitted that in a telephone conversation, she had mentioned to the Respondent that she did not have enough work to do and he said he would rectify the situation.  She stated that her role was slowly being diminished and was now reduced to inputting daily tasks into a spreadsheet and emailing payroll employee time worked within the fortnight and once a month preparing invoices for the dentists. 

Evidence given at hearing by Complainant:

At hearing the Complainant stated that over time her conditions of employment had been slowly eroded, that initially she did payroll but that she no longer had responsibility for that.  She had been told that she would do the payroll for Balbriggan instead but that never happened.  She also advised that she had been responsible for dealing with suppliers but that those duties had moved to the new Business Manager and that her role had been much reduced as a result and when she returned to work in May 2020 after the COVID lockdown there was a significant reduction in work and that she had brought this to the attention of the Respondent, but nothing had been done about it.  She stated that her role prior to March 2020 was that she was responsible for credit control, payroll, income and recording of same, HR, insurance, garda vetting, ordering stationary.  She stated that she was off as a consequence of the COVID restrictions and that she returned to work on the 22nd May 2020 and at that time she was manually doing up income for the practice, inputting same onto work sheets and comparing income with new practice books and emailing payroll employees hours worked etc and monthly invoicing to dentists.  She said that as a result of the changes that happened following the employment of the new Business Manager, there was a significant reduction in emails from suppliers and that these emails had been redirected to the Business Manager.  She stated that by the end of her employment her work could be completed in three hours and that she had brought this to the attention of the Respondent. 

CA-00042059-003 (Unfair Dismissals Act, 1977):

The Complainant submitted that on the 27th November she was asked to fill out a P80 Social Welfare Form for an employee.  She submitted that she advised her colleague that she would not have the information as she no longer did payroll as it was now being done by the Respondents’ accountant.  She submitted that she asked her colleague to give the form to the Respondent as he would have that information.  She submitted that just before 5pm that evening, while she was at home, she received a phone call from the Respondent and that he asked her why she did not fill out the form to which she replied that she did not have the information, that she did not know what the employees gross and net pay or PRSI rate were.  She submitted that the Respondent said she should have gotten the information required and that when she tried to reply he repeated that she should have gotten the information required.  She submitted that he then repeatedly shouted at her, “you think about what you have done and dwell on it”.  She stated that she was left totally shaken and stressed and that in all her working career, no-one had ever spoken to her in this way.  She submitted that following the phone call she received an email at 18:19pm outlining what she should have done and stating her duties.  She submitted that the Respondent wanted her to confirm by return email that going forward, under similar circumstances, she would accept and agree to perform, what reasonably falls within her role, with the requisite cooperation to fellow work colleagues.  She submitted that she felt the requisite cooperation to fellow work colleagues implied that she in some way had been rude or abrupt to her colleague.  She stated that this colleague would normally barely speak to her.  She stated that she felt that phone call she received was an official verbal warning and that the follow up email was a written warning.   She described both the phone call and the email as very upsetting to her as she had been employed as the Practice Manager with the practice for nearly 29 years and this was the first occasion when her ability to perform her duties had been questioned.

The Complainant submitted that the emergence of this issue was a reflection of the development of her position and responsibilities and that if this task was part of her remit, she should have been afforded a proper induction to same.  She stated that on Friday the 4thDecember, the Respondent rang her to ask why she did not reply to his email of the 27th November.  She submitted that she said she could not stay at the practice after the way he had spoken to her in the phone call on the 27thNovember and that she was resigning.  She submitted that the Respondent asked her to send in an email confirming her resignation.  She submitted that she sent her resignation letter at 14:23pm on the same day and that the Respondent replied to her at 14:43pm.  She stated that she felt that she had no other option but to resign.  She stated further that on the 18thDecember she emailed the Respondent outlining her grievances and that he replied to her email approximately an hour later and wished her well in for the future. 

Evidence by Complainant given under Cross Examination

In response to questions from the respondent representative the Complainant confirmed that she commenced working with the practice in February 1992 and that she had signed a contract with her previous employer in April 2019.  She confirmed that the previous employer had misplaced the contracts and had provided replacement contracts (based on templates from the Dental Council) in April 2019.  She further confirmed that the contracts had provision for a grievance process which contained a process for hearing a grievance, as well as having an appeals process.

In relation to her early concerns regarding the duties of the new Business Manager, the Complainant confirmed that she had raised her concerns during a phone call with the CEO, that he had invited her to meet but that she did not set down her concerns.  In response to a question from the Respondent representative she confirmed that the CEO had a further phone conversation with her in that regard where he asked if everything was ok and that she had confirmed that it was.  She further confirmed that she did not raise any concern following her return to work after Covid restrictions. 

In relation to the phone call in November 2020 the Complainant confirmed that she did not get the information sought to complete the form as it was not within her remit. She stated that she would dispute the evidence of the CEO, that she was shocked at his behaviour and that he would not let her explain.  She stated that all she said was that it was not in her remit and that she advised her colleague to give the form to the accountant, as he had the information.  When asked if she could, with hindsight understand the frustration of the CEO, she stated that maybe she should have gotten the information but that she was not told that was in her remit.

Again, in response to questions from the Respondent, the Complainant confirmed that she sent her resignation by email of 4th December and that she did not raise any concerns until her last day of work.  The Respondent representative pointed out that this was 2 weeks after the resignation.  When asked why she did not send in her concerns sooner, the Complainant stated that she was not capable of doing so. She stated that she got her son to assist her to draft the email. 

The Respondent representative asked if she accepted that by sending in her concerns at such a late stage, she had not given the Respondent the opportunity to address her concerns, to which the Complainant relied “I suppose so.”

CA-00042059-002 (Terms of Employment (Information) Act 1994):

The Respondent submitted that the Complainant had been provided with a contract of employment and that there were no changes to her terms and conditions of employment as alleged or at all.

CEO’s evidence:

At the hearing the CEO gave evidence and stated that he did not accept the position as outlined by the Complainant.  He submitted that the Complainant had initially received a contract of employment, a copy of which had been appended to the submission and that there were no material alterations to her contract throughout her employment.  He confirmed that there had been some changes to the way her duties were carried out and he gave one example in relation to payroll and he stated that the payroll accounts were submitted by her in the normal way to the Respondents’ accountants and that the accountant in turn submitted the final accounts to revenue.  He stated that this was not a change in her responsibilities but merely a change in terms of the process operated by the Respondent.  The CEO also pointed out that the Complainant had never accepted the introduction of the new Business Manager role into the organisation and that despite his efforts to clarify that role, she did not accept the introduction of the role.  He stated that on numerous occasions the Complainant had complained that she had too much work and that as a consequence of that he had not advanced the proposal to ask her to carry out the work relating to the Balbriggan practice.  He also stated that it was still within her role to contact suppliers and to pay invoices etc as heretofore.  However, he stated that the Complainant was a part-time worker, and that suppliers sometimes made contact on days of the week when she was not available to them, and in those instances, they contacted the new Business Manager.  He stated that this was simply practical and logical.  The CEO also pointed out that when the Complainant raised concerns with him on the phone in relation to her role and that of the Business Manager, he offered to sit down with her to clarify that role and that she never took up the offer. 

CA-00042059-003 (Unfair Dismissals Act, 1977):

The Respondent submitted that there was no dismissal of the Complainant; rather that she willingly resigned from her employment as Practice Manager.

The Respondent submitted that the Complainant commenced employment with the Respondent practice in February 1992 and that she worked six hours per week and that she was employed as a Practice Manager.  The Respondent submitted a copy of the employment contract.  The Respondent submitted that there were no changes to the terms of employment of the Complainant as alleged or at all.  The Respondent submitted that the contract of employment contained a clear and accessible grievance procedure, to which the Complainant had recourse for any issues she experienced during the course of her employment and that at no time during her employment did the Complainant raise any issues of concern, either formally or informally, and that she failed to invoke the grievance procedure. 

The Respondent submitted that in 2008 the then owners of the Respondent practice amended the duties of the Complainant to that of book-keeper and that she continued to work six hours per week with a salary of €25.00 per hour.  The Respondent submitted that the practice was sold in March 2020 to the Respondent and that the Complainant was unhappy that she did not receive a payment upon the sale of the practice.  The Respondent submitted that the Complainant held the role of Practice Manager with primary responsibility for book-keeping within the practice.  He submitted that following the acquisition of the practice by the Respondent in June 2020, the Respondent recruited a Practice Nurse who would also act as a Business Manager and who was engaged to develop the business into the future.  The Respondent submitted that this was not the role of the Complainant, who worked as a part time book-keeper and was not engaged in business development. 

The Respondent submitted that on the 8thJune 2020 the CEO of the Respondent met with the Complainant to discuss the new role of the Business Manager and to introduce the Complainant to the Business Manager.  The Respondent submitted that the Complainant believed, erroneously, that her role was being transferred to that of the new Business Manager, and she expressed concerns in that regard in a letter of the 18thJune 2020.  The Respondent submitted that, by letter on the 19thJune 2020, the CEO responded to the Complainant and made it clear that she remained in the position of Practice Manager and that no changes were proposed for her position.  As part of that correspondence, he set out clearly the role of the Business Manager who was a nurse with responsibility for clinical governance.  He submitted that this reflected the advanced dentistry service offered by the Respondent and he submitted that he offered to sit down with the Complainant to discuss any issues she had.  He submitted that the Complainant did not take up the offer of a meeting and continued to work alongside the newly appointed Business Manager.  He submitted that the Complainant was not merely engaged in payroll matters, but had access to all software packages of the Respondent, including holding the passwords for same. 

The Respondent submitted that on the 27thNovember 2020 the CEO spoke to the Complainant by telephone and that the contents of that telephone conversation in a follow up email of the same date, a copy of which was appended to the submission.  The Respondent submitted that it was clear that the Complainants’ duties encapsulated payroll and filling out of certain revenue documentation and that the Complainant had stated that she did not have the necessary information to fill in a particular revenue form but that she did not seek to gather this information.  The Respondent further submitted that in the absence of any notice whatsoever, by email dated the 4thDecember 2020, the Complainant submitted her resignation from employment and that it was only after her resignation from employment that the Complainant set out certain issues in relation to the email of the 27th November 2020, in an email of the 18th December 2020, which was her last day of work prior to resignation taking effect.  The Respondent submitted that the CEO duly responded by return and made it clear that the Complainant should continue to undertake the payroll for the dental practice including the verification of working hours of certain staff members. 

The Respondent submitted that the Complainant duly resigned from employment on the 4thDecember 2020 with the resignation taking effect from the 1st January 2021, with her last day of work being the 8th December 2020.  The Respondent confirmed in their submission that there was no written or verbal warning issued to the Complainant and that her belief that the email of the 27thNovember 2020 from the CEO, which was merely asking the Complainant to undertake a task in line with her responsibilities as an employee, was unreasonable.  The Respondent outlined that the Complainant did not raise any grievances prior to her resignation from employment and that there was no aggressive treatment as alleged or at all, directed at the Complainant. 

The Law:

The Respondent submitted that in accordance with Section 1(1)(b) of the Unfair Dismissals Act, a two-tier test is provided for in the case of objectively assessing constructive dismissal as follows:

“The termination of 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 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”.

The Respondent submitted that the two-tier test was evaluated in the case of Western Excavating (ECC) Ltd versus Sharp with Lord Denning MR describing the contract test as;

“If the employer is guilty of conduct which is a significant breach going to the root of the 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” and the reasonable tests asks whether the employer; “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, [if so] the employee is justified in leaving. 

The Respondent submitted that there was no dismissal of the Complainant and that she rather resigned from her employment, that she did not invoke the grievance procedure of the Respondent prior to her resignation from employment and that there was no aggressive treatment as alleged.  In conclusion the Respondent submitted that the claim of the Complainant should be dismissed. 

CA-00042059-002

I considered carefully the oral submissions made by both parties at the hearing and the written submissions and appendices provided by the parties in advance of the hearing.  I noted in particular that the Complainant did receive a contract of employment and that her terms and conditions remained unaltered up to the time of her resignation.  I noted further that the erosion of her roll described by the Complainant was clarified by the Respondent and that her responsibilities had not changed significantly, however, the methodology of carrying out those roles had changed and had reduced the amount of time required for those roles. 

It is also clear from the oral evidence given by the Respondent CEO and from the supporting documentation provided with the submission that the Respondent did offer to meet with the Complainant to address any concerns she had in relation to her duties and that the Complainant did not take up the offer to have that discussion. 

Based on the above evidence I find that the methodology for carrying out some of the Complainants’ duties had changed, that as a result of the introduction of the Business Manager role some of those duties were influx and that these matters could and should have been addressed by way of a discussion between the parties.  I further find that the Complainant did not engage in the process offered to her by the Respondent to address that matter.  Nonetheless I find that those changes of themselves, did not significantly alter in any way the terms and conditions of employment of the Complainant and in that context, I find that this complaint is not well founded. 

CA-00042059-003

I have carefully considered all of the evidence I heard in the course of the oral hearing, and I also examined all the documents presented and the submissions both oral and written made by both parties involved.  It is well established that there are two tests for constructive dismissal in the statutory definition provided.  Either of these tests can be invoked by the employee.

The first is the contract test where an employee will argue an entitlement to terminate the contract of employment because of a fundamental breach of the employment contract on the part of the employer.  The breach must be a significant breach owing to the root of the contract.

Secondly the employee may allege that he satisfied the 1977 act “reasonableness” test.  That is that the conduct of the employer was such that it was reasonable for him to resign, that is to say that the employer has conducted it’s affairs so unreasonably that the employee cannot be expected to put up with it any longer and is justified in leaving.  The test is objective.  The test requires that the conduct of both the employer and the employee be considered.  The conduct of the parties as a whole and the cumulative effect must be looked at.  The conduct of the employer complained of, must be unreasonable and without proper cause and it’s 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. 

In this particular instance, and in circumstances where the Complainant has referred a complaint of having been unfairly dismissed from her employment (by reason of constructive dismissal wherein she has worked for in excess of one year and where the Workplace Relations complaint form dated 19th January 2021) issued within six months of the constructive dismissal, I am satisfied that I (an Adjudication Officer so appointed), have jurisdiction to hear the within matter. 

In a case of constructive dismissal, there is a generally accepted proposition, that the employee should engage and exhaust internal mechanisms which might be available in a given workplace before rendering a resignation.  I would therefore have regard for the seminal employment appeals tribunal case UD474/1981 Margo Conway V Ulster Bank Ltd, wherein the tribunal stated;

“The tribunal considers that the appellant did not act reasonably in resigning without first having substantially utilised the grievance procedure to attempt to remedy her complaints.  An elaborate grievance procedure existed but the appellant did not use it.  It is not for the tribunal to say whether using this procedure would have produced a decision more favourable to her, but it is possible”.

In the instant case, the Complainant stated that she had been asked to fill out a P80 Social Welfare form for an employee and that she did not have the information relating to the query as she no longer did payroll and so she advised the new Business Manager to contact the CEO.  She described being contacted by phone later that day by the CEO,  and a consequential challenging conversation in relation to her failure to provide the information required.  She stated that the Respondent CEO had berated her and that as a result she was left shaken and stressed.  She described that she considered the phone call to be an official verbal warning and the follow up email which she received from the CEO to be a written warning.  She stated that as a result she felt that she had no other option but to resign and she submitted her written resignation on the 3rdDecember 2020. 

I noted the Complainants’ evidence at hearing that she had been a diligent and dependable employee since she commenced employment with the employer in February 1992 and that she had continued to provide the same reliable service to the Respondent following the transfer of ownership in 2020/2021.  She confirmed that she had indeed often taken work home with her to ensure that everything was done and done on time.  She confirmed that there had been issues between her and the Business Manager and that she had brought these to attention, however she confirmed that she did not have documentary evidence of having brought these matters to attention but that she had advised the CEO in other phone conversations of those concerns.  She stated that the phone call in relation to the P80 information had left her very shaken and distressed and that she had never been spoken to in that manner throughout all her years of employment.  She stated that as a result of that phone call, she believed herself to have been disciplined by way of a verbal warning on that phone call and that she considered the follow up email to be a formal written warning. 

I noted the Respondent position where the Respondent accepted that the phone call in question had occurred, and that the CEO had raised concerns in relation to the Complainants’ performance of her duties.  I noted that at hearing the Respondent described the poor interactions and cooperation of the Complainant with the newly employed Business Manager and that he used this occasion to open a conversation with the Complainant in relation to what he considered acceptable cooperation between employees.  I noted the Respondents’ position that he had offered to meet with the Complainant previously in relation to any concerns she had regarding her duties but that this option had never been taken up by the Complainant and I noted further that the Respondent provided a copy of the Complainants’ contract of employment which had the Respondent grievance procedure appended to it.  I noted the Respondent position that no grievance was raised by the Complainant throughout her employment in accordance with that procedure and I noted that this position was accepted by the Complainant at hearing. 

Based on the above evidence I find that the Complainant did have grievances that could have and should have been addressed through the Respondents’ grievance procedure and I find that the Complainant made no attempt to address any grievance to the employer during the course of her employment.  In this context I find that the Complainant did not act reasonably in resigning without first having utilised the grievance procedure to attempt to remedy her complaints.  I find that the Respondent had not issued a verbal warning nor indeed a written warning in engaging with the Complainant to address concerns in relation to her behaviour and interactions with a fellow employee and in that context, I find that this complaint is not well founded. 

CA-00042059-002

I have found that there was no material alteration to the changes of terms of employment of the Complainant and in that context, it is my decision that this complaint is not well founded. 

CA-00042059-003

I have found that the Complainant did not act reasonably in resigning without having utilised the grievance procedure and that she was not subjected to any form of disciplinary action by the Respondent.  It is therefore my decision that this complaint is not well founded.   

Grievances, terms of employment