Complainant

Respondent

Parties

Rona  O Neill

Beacon Hospital

Representatives

Terry O'Neill & Associates

Owen Keany B.L instructed by Sherwin O’Riordan, Solicitors

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-00049059-001

08/03/2022

In opening the case the complainant’s representative stressed the significance of the background to the events giving rise to the termination of employment, and its contribution to the eventual decision by the complainant to resign her position.

The starting point was the introduction of a new grade in her department, an Operating Department Practitioner (ODP) to which she would have a reporting relationship, but which gave rise to serious professional and ethical considerations as the person was not a registered nurse.

Some resolution of this was achieved when it was clarified that the ODP would not have a clinical role.

However, the dispute about the role led to a significant change in the working atmosphere in the complainant’s department, and the good working relationships that had been traditional soured and the complainant was left feeling isolated and excluded.

In due course, on May 14th, she was invited to what was described as an ‘informal meeting’ with her line manager but, to her surprise, found that a member of the HR team was in attendance. She had been given no notice of this.

The tone of the meeting was oppressive and aggressive, and a number of unsubstantiated allegations were made against the complainant, including that a formal complaint had been made against her.

She asked for a copy of the complaint and any supporting material, but this was not provided, although the issue was not pursued any further.

Nonetheless, these events had a very negative effect on the complainant to the point where it necessitated her to take sick leave.

On June 9th, she wrote to her line manager suggesting an informal resolution of the issues that had arisen, and, not having had a response wrote again on the 18th and was promised a response.

Some days later, on the 21st and while on sick leave she was invited to a meeting which she could not attend because she was on leave (she did not simply decline to attend , as has been asserted by the respondent).

At this point she escalated the matter to the HR Director and in due course as no progress was made, she resigned on September 24th.

The complainant gave evidence on oath.

She has over forty years’ experience as a nurse including in specialised units such as ICU, CCU and has worked as a senior nurse manager at Assistant Director of Nursing level and has worked with the respondent for eight and a half years. At the time of her resignation, she had been working two days per week.

Following the questioning of the role of the ODP she felt as if she had been frozen out by her line manager by way of retaliation, and there were daily examples of this.

Regarding the May 14th meeting, she was given two hours email notice of the meeting but in fact did not see the email and was ‘tapped on the shoulder’ to be told about the meeting just before it started.

She was given no indication of the purpose of the meeting, or that there would be a HR representative there.

She was criticised for being very marginally late and the tone was generally adversarial.

She felt humiliated, and especially upset at the unsubstantiated allegations made against her, to the point that she went on sick leave for two weeks, and in the course of this was invited to the ‘mediation’ meeting.

There was a further incident on July 5th when she was publicly upbraided for answering a phone call. At that point she escalated the matter to the HR Director.

She met him on July 14th but felt he was too focussed on the ODP issue and did not seem concerned about her general grievance.

She rejected mediation as she would have to confront the colleagues who had caused the problem

A meeting with the Director of Nursing on July 21st had gone well but did not address her core grievance.

Under cross examination it was put to the complainant that the ODP issue was not the core concern she raised in her letter on June 9th to her manager, but she insisted that she had remained very focussed on it.

She accepted that HR and her manager had the right to raise the issues thy had at the meeting on May 14th.

She also said that the change in how she was treated by her manager dated from the time she had first raised the issue, but she did not know whether others who had also raised the issue were also treated differently.

Regarding her response to the June 21st letter to attend the mediation she did to want to attend because she felt the process would not be impartial.

She also accepted that while she had said that she would follow up on the correspondence of June 21st, she had not done so, and that instead she had escalated the  matter to the HR Director (HRD).

She agreed that the HRD had responded the following day and set up a meeting on the issues she had raised, but she still wanted an investigation.

However she also agreed that she had not requested an investigation and that her first communication after the meeting on July 21st was her resignation.

The complainant’s employment ended on September 24th, 2021, when she resigned. She had taken some steps to invoke the internal grievance machinery but resigned before the procedures were completed. She was not subjected to any unlawful or unreasonable treatment of the kind alleged in the WRC complaint form.

On May 14th, 2021, arising from concerns about the complainant’s conduct in the workplace she was invited to attend an informal meeting with a representative of the HR department and her Clinical Nurse Manager.

She was told that several complaints had been made about her including that she was dismissive in responding to the new appointment of an Operating Department Practitioner (ODP).

This meeting had been an attempt by the respondent to address informally the issues which had arisen, and no disciplinary action was taken.

The complainant then went on sick leave from June 8th to the 13th, but the accompanying medical certification made no reference to workplace stress but simply referred to stress.

When she was on sick leave, she wrote to her line manager complaining about the May 14th meeting and raising a number of issues which she said were of concern to her colleagues; specifically, the appointment of the ODP.

On June 21st following her return from sick leave the HR department offered a meeting to discuss the issues raised in her letter on June 9th and the number of topics for such a meeting or suggested. Including the meeting on May 14th. On that same day the complainant again went off work due to stress and remained on sick leave until July 5th.

A return to work interview was held with the complainant and the following day she made a complaint to the Director of Human Resources (HRD) that she was being bullied and harassed. She alleged that the meeting proposed on June 9th was an attempt to resolve the situation without the need for escalation.

She requested a meeting with the HRD to discuss her concerns.

He replied on the July 7th and 9th and a meeting took place on the 14th which was the first available date having regard to the complainant’s roster.

At the meeting the complainant was advised of all options available to her including the possibility of informal resolution or, if she preferred, the option to proceed to a formal investigation.

The outcome was an agreement to address her concerns by informal means and three separate meetings were due to take place, each dealing with the specific issues raised by the complainant.

The first of these meetings took place on July 21st but by letter of July 30th the complainant resigned confirming that she would work out her notice period. In her letter of resignation, she said that her grievance was not being advanced by the respondent.

The Director of HR responded the same day assuring her that the grievance procedure was being advanced.

She replied on August 6th denying that the meetings were intended to address her issues and while accepting that she had agreed to them they did not meet what she required.

A final letter went from the respondent on August 13th noted again the agreement of all parties following the meeting on the 14th of July to the separate meetings which would be held to address the issues raised by the complainant.

The respondent says that the complainant has failed to establish any grounds on which her resignation was justified. The respondent was seeking to address all of the issues in a manner that had been discussed and agreed between them and therefore her complaint of constructive unfair dismissal must fail.

The complainant failed to exhaust the internal grievance procedures required to resolve the grievance and this is sufficient to undermine her complaint of constructive unfair dismissal.

Reference was made to legal authorities on this point on which the respondent has relied.

Regarding the industrial relations complaint this is a duplication of the issues raised in the complaint. Submissions were also made on medication in the event of a finding in the complainant’s favour.

The respondent HR Director gave evidence on affirmation.

He confirmed that on receipt of the complainant’s letter he met her as soon as it was practical to do so, having sent her an immediate acknowledgement.

They met for an hour and agreed a strategy for dealing with her complaints by means of three separate meetings.

The first of these was to deal with the ODP issues and was to involve the Director of Nursing and Director of Operations.

The second was to be with the ODP and the final one with her Clinical Nurse Manager. The meetings were deliberately sequenced in that order as the first two would clarify issues to be dealt with at the third one.

The HRD stated that he did outline the investigation option, but he understood that the agreed arrangement just set out was acceptable to the complainant.

One meeting took place and the other meetings were to be set up (the ODP was on annual leave).

However, the next communication from the complainant was her resignation.

In response to a question the HRD confirmed that the possibility of an investigation had been discussed at the meeting on July 14th, but the process set out was the complainant’s preferred option.

The facts are as set out above. It is a complaint of constructive unfair dismissal.

The Unfair Dismissals Act and the resulting jurisprudence have set a high bar in relation to what will justify the termination by either side of a contract of employment.

It is, after all, a breach of a legally binding contract.

When an employer terminates the contract of employment, there must be cause, a fair process must have been followed and the decision to dismiss must be within the range of reasonable sanctions having regard to the conduct giving rise to the disciplinary proceedings.

Complaints under the Act most normally arise when an employer has terminated the employment, and the criteria referred to are then the key tests as to whether the dismissal has been a fair one.

On the other hand, and in general, it is relatively easy for an employee to terminate their employment by simply giving notice of their intention to do so and then resigning.

In most, if not all cases an action for breach of the employment contract is unlikely to arise.

A different situation arises when an employee terminates the contract of employment but then makes a complaint of constructive unfair dismissal and that is a different matter.

In a much quoted piece from ‘Dismissal Law in Ireland’ (and referred to in the respondent’s submission) 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 true 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 complaints

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 behaviour of the employer is the critical issue, although the employee’s behaviour must also be considered. Generally, this reference to the employer’s conduct is taken to open an assessment of whether the employer’s conduct has been so intolerable that it justifies the complainant’s resignation.

In other words, has it been at a level and of a nature that represents a repudiation of the contract of employment.

In relation to the employee’s behaviour this normally refers to the efforts that a complainant made to bring the matter to the employer’s attention and to have it remedied by means of the grievance machinery.

The EAT has made it clear in a series of decisions and followed by the Adjudication service that the obligation to use company procedures to address a grievance is a necessity (and see again Dr Redmond’s remarks above).

Turning to the narrative of events; it is common to both parties’ submissions.

In the background is the dispute about the appointment of an Operating Department Practitioner (ODP) which was perceived by the complainant as raising issues of professional significance. This led directly to the meeting of May 14th, which, whatever the intentions of the respondent’s employees backfired badly.

The complainant took serious exception to the demeanour of the management representatives as being ‘accusatory and adversarial’.

Both sides contributed to this; the management was gauche in its approach to the meeting, and it was something of an ambush, and, on the other hand there may have been some degree of over-reaction by the complainant, although in the circumstances it is easy to see why. Nonetheless, the dominoes began to fall with this meeting and, with the benefit of hindsight, better handling of it in advance by the respondent and subsequently by the complainant might have avoided the final outcome.

But the clock started ticking in earnest with the complainant’s letter of complaint to her line manager on June 9th to which she did not initially receive a reply but was then told in response to a follow up letter on the 18th that she would.

The process was interrupted by sick leave (and the complainant only worked part-time) but immediately following her return to work on July 5th she escalated the matter to the HR Director.

Thus far, matters were under control, and this continued with a meeting with the HR Director on August 14th.

As set out above a strategy was agreed between them and the first of a series of agreed meetings took place a week later in relation to certain ethical issues.

However, just over a further week later the complainant resigned; on July 30th.

Further efforts to persuade the complainant to pursue the agreed strategy did not bear fruit.

It will be obvious that this comes nowhere near the level of compliance with the standards set out above in the quotation from Dr Redmond and other authorities.

In fact, the HR Director reacted speedily to the letter from the complainant of July 6th and, following their meeting a week later set in train a process following agreement with her that had been far from exhausted at the time of her resignation; it had barely begun.

There was every reason to believe, or at least hope that it might bear fruit. And while the complainant may have held a more pessimistic view of its prospects based on the impact on her of how various aspects of the matter had been handled before the involvement of the HR Director, once he did become involved, and agree a strategy with her, she was obliged to see it through for two reasons.

First, she had made an agreement to do so, and second she was obliged to in order to meet the requirements of exhausting the internal workplace procedures necessary to ground a successful complaint under this Act.

Even at the distance from the events of well over a year later that impact on the complainant was visible at the hearing. It is clear that she remained very upset by the combination of events which occurred. It is, of course a great pity when a forty-year career of professional service and achievement at the level described by the complainant comes to a (hopefully temporary) end in such unfortunate circumstances.

However, the legal principles referred to above are clear, and the complainant has not met their requirements. The internal process established with her agreement had a long way to go and she was obliged to exhaust it.

I find that the facts of the case do not place the complainant in a situation where she if justified in claiming constructive unfair dismissal and her complaint does not succeed.

For the reasons set out above Complaint CA-00049059-001 is not well founded and is not upheld.

Constructive unfair dismissal