ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00040223

Parties:

Complaint:

Date of Adjudication Hearing:  02/05/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 8 of the UnfairDismissals Acts, 1977 - 2015,   following the referral of the complaint to me by the Director General, I inquired into the complaint  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant contends that she was unfairly dismissed by way of constructive dismissal when she left her employment following a lengthy and unfair investigation into vexatious complaints made against her.

Summary of Complainant’s Case:

The Complainant is a highly skilled healthcare worked with over 30 years’ experience in the sector.  She was employed by the Respondent from 1 August 2019 to 18 July 2022 when she had to resign due to the treatment she received by the Respondent. 

It is submitted that a complaint was lodged against the Complainant in April 2021.  It was not brought to her attention until September 2021.  There was a redacted complaint titled ‘protected disclosure’.  A lengthy investigation did not conclude until 9 months later.  The investigation was severely flawed and unfair.  The allegation was baseless and yet the Respondent did not facilitate her return to work.  Just before she was due to return to work, she learned of several other staff complaints awaiting her on her return.  Throughout the investigation she informed management of the volatile environment in the employment and expressed her concern about possible fictitious complaints to no avail.  She needed to safeguard her mental health as her name and reputation had been ruined due to the lengthy and flawed process so she had no choice but to resign.

The Complainant was brought through a Trust in Care process with allegations that were vexatious and baseless.  She was placed on protected leave on 9 September 2021 and then placed on “paid suspension” from 24 September 2021.  It is submitted that there was not a proper preliminary screening before the investigation commenced.  There were 4 named witnesses who did not concur with the allegations as early as January 2022.  It took a further 5 months to issue a final report.                      It is alleged that there was a toxic work culture in the employment and the Complainant had been tipped off by a service user that some staff were out to get her and she should watch her back.          Shortly after a new employee commenced in early 2021, he made a complaint on 21 April 2021.    For reasons unknown, the allegations were not put to the Complainant until September 2021.            The original complaint was treated as a protected disclosure and some disagreement arose regarding this.  Eventually the investigation was carried out under the Trust in Care policy.               The allegations concerned a supposed conversation in which the Complainant is supposed to have been giving tips on how to avoid caring for certain service users.  The Complainant was interviewed with her trade union official present.  It took 8 weeks for the notes of this interview to be forwarded.             The Complainant had relayed information such as the Complainant never worked with the person who made the allegations, 2 witnesses he named had not concurred with his allegations.  The investigation should have stopped there as there was no case to answer. Instead 6 more witnesses were interviewed and all but one gave excellent account of the care the Complainant provided.       This one person  notably accompanied the staff member who made the original allegations.              This person also went on to make vicious, nasty and completely untrue allegations about the Complainant.   The Complainant was interviewed a second time on 10 March 2022.  By this point she was in shock and devasted by the appalling treatment.  She wrote to the Respondent on 21 March 2022 setting out her position that she had effectively been subjected  to bullying and harassment, by way of vicious and unfounded rumours and allegations.  No follow up action was taken by the Respondent.  The investigation report was issued in draft form on 25 April 2022.  The final report was issued on 23 May and again by the Regional Manager on 30 June 2022 when she stated that she would be in touch about a return to work.  No one contacted her to offer an apology or talk to her about returning to work.  She was advised that grievances were received regarding her and they were put on hold pending the process.  At this point, after 10 months suspension and her good name tarnished beyond repair she had no choice but to resign.

It is submitted that this case meets the definition of constructive dismissal where the termination of the employee’s contract of employment by the employee was reasonable in circumstances because of the conduct of the employer.

Case law in support includes: Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 , Berber v Dunnes Stores (2009) E.L.R. 61.

Summary of Respondent’s Case:

The Respondent argues that the claim of constructive dismissal cannot succeed as the Complainant did not utilise the grievance procedure to process her grievance.

Ms Byrne’s submission states she had “no choice but to resign” on 18/07/2022. Instead of taking the irreversible decision to resign, Ms Byrne could have sought professional advice from her Trade Union with whom she had already engaged during the preceding investigation which exonerated her.

Ms Byrne’s submission does not explain what happened on 18/07/2022, which had not existed up to 18/07/2022, that compelled her to resign on that date. It does not explain why she did not accept the offer of 22/07/2022 to reconsider her resignation and for her salary to be paid while she allowed an opportunity for any grievance/s to be considered (extracts from emails below):

Email of 22/07/2022 ………we ask that you consider every alternative and seek advice before taking the irreversible decision to resign. ……………….. We ask that you engage with us to allow everyone an opportunity to try resolve matters via procedures already in place. …….. The grievance procedures are specifically designed to allow everyone to resolve matters so nobody is compelled to resign without exhausting alternative options. It is important that you have an opportunity to take advice and to formulate your formal grievance. Therefore we are willing to continue with your salary payment for a term which can be agreed. If you wish to return to work while these procedures are utilised, you can complete the Notification of Working Under Protest Form. Here is a link to this form: Notification of Working Under Protest Form .pdf (cheshire.ie) Alternatively, if you wish to utilise the grievance procedures as a current employee, but do not wish to return to work during the process, we can agree to continue your salary payment for a term which can be agreed.

Ms Byrne’s submission is critical of the Trust in Care process. It is relevant that the investigation exonerated Ms Byrne and in that process she was supported by her fulltime Union Official, who could have also supported her to lodge a grievance regarding any matter she was unhappy with.

In relation to the length of the investigation process, the Respondent submits the following:

In the Labour Court determination no. UDD1745, a hospital - and - an employee, the process lasted 7 years, and it was almost 6 years after her suspension from work before the Respondent formulated an allegation against her for the first time. Whilst the time involved was highlighted by the Labour Court, it did not render the outcome unfair. It is in nobody’s interests for any process to be extended if this is avoidable, and if Ms Byrne had felt aggrieved in that process her full-time Union Official could have supported her to lodge a grievance regarding any matter.

Ms Byrne states she had no faith in the employer to resolve anything and her trust was irrevocably broken. In UD66/2013 Karolina Jabczuga and Ryanair Limited, the Tribunal considered whether an absence of faith in procedures absolved the claimant from their obligation to utilise procedures. In the Ryanair case, the claimant had lodged the complaints but was dissatisfied with how they were dealt with. Despite them having utilised the first stage of the procedures (which Ms Byrne failed to do), the Tribunal confirmed that asserting a loss of faith does not justify a failure to exhaust the internal grievance process: The claimant had made a number of complaints in relation to her employment. She was dissatisfied with the way in which these complaints were dealt with. She did not exercise the option to appeal the findings or decisions of EOC. She appears to have lost faith in EOC and in the ability of EOC to deal with her complaints. That, of itself, does not justify a failure to continue to pursue the grievance process. The point of having the option to appeal is to have the opportunity to have a finding with which you disagree considered by a different decision-maker. The claimant in this case failed to fully engage with and exhaust the grievance procedure available to her. In resigning in circumstances that a claimant asserts amount to constructive dismissal, such claimant must act reasonably. This includes affording her employer an adequate and reasonable opportunity to address and remedy any grievance. By resigning before the grievance procedure had run its course the claimant did not afford this opportunity to the respondent and the Tribunal is satisfied that she did not reasonably in so doing. Accordingly this claim pursuant to the Unfair Dismissals Acts, 1977 to 2007 fails

Minimising losses:

Ms Byrne had an option to seek alternative employment prior to her resignation. She also had an additional opportunity to rescind or suspend her resignation and seek alternative employment in that period.

Ms Byrne did not seek a Reference until 02/08/2022, which was over 2 weeks after her resignation.

The Report of the Strategic Workforce Advisory Group on Home Carers and Nursing Home Healthcare Assistants called for drastic steps to address the labour shortages in care workers. This resulted in 1,000 work visas for non-EU healthcare workers in November 2022. The Irish Times reported on 15/10/2022 that there was an average of 4.5 vacancies per nursing home last year and each year more than one in 10 nursing home workers either quits or retires.

A healthcare worker actively seeking work in August 2022 would have been expected to find immediate employment to replace the hours and salary which they resigned from. If they chose a new job with less hours or less pay this would not have been consistent with their obligation to minimise their loss.

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.

In this case, I find that the Complainant was subjected to an intolerable long, stressful process which could have been halted at an early stage when the 2 main ‘witnesses’ cited by the employee who made the allegations did not corroborate his allegations.  There appears to have been some ‘bad blood’ in the employment.  While the Respondent had a responsibility to investigate, it is clear that at an early stage the matter could have been closed.  The fact that the whole process took some eight or nine months was not acceptable for a reasonable employer and I find that the Respondent has failed to discharge their obligations to the Complainant, in particular the failure to make contact with her to provide the definite arrangements for a return to work.  Instead they referenced some more complaints coming up for the Complainant on her return.

In the circumstances and based on a review of the evidence, I find the Complainant was unfairly dismissed by way of constructive dismissal.   I note that she was unemployed for a period and then employed for less hours.    I find that compensation is the appropriate remedy and I award her the sum of €13,650.

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 €13,650 compensation for loss of earnings.

Dated:   27/July/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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