Complainant

Respondent

Parties

Natasha  Kinsella

Right At Home Care Ltd

Representatives

  Self.

John O'Keeffe, John O'Keeffe & Company, Solicitors.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00054949-001

09/02/2023

The Complainant was employed by the Respondent as an Area Manager. Employment commenced on 17th February 2020 and ended on 14th December 2022.

This complaint was received by the Workplace Relations Commission on 9th February 2023.

·        The Complainant feels extremely let down by the Respondent and feels her mental health suffered due to the unnecessary stress they put her under. The Complainant worked with the Respondent for almost 3 years and worked her way up from Admin to Area Manager. She was always accommodating and covered everyone when and where needed and to the point of exhaustion for the company, she basically worked 3 different people’s roles and was constantly burned out from training new people and taking the on call over long periods of time - 7 days straight at some stages.

·        The Complainant contends that to her this was her career, she put her heart and soul into everything she did and was even nominated for an Above and Beyond award from clients in October 2022.

·        In August of 2022 the Complainant received some bad news – she was told at 31 years of age that she would be unable to have children. This sad news came with other issues i.e., hospital appointments and so on. She explained this to her manager - genuinely opened up and explained she was struggling with her mental health and was struggling to get out of bed and go to work. The Complainant requested a shorter working week then and her manager said she would come back to her. The Complainant was not offered a shorter week or fewer hours.

·        In October of 2022 just after the Complainant had been out sick for a number of weeks due to ongoing issues and minor surgery and had explained this in detail with medical certificates to her manager. She began to get more and more appointments and again requested a meeting with her line manager and the Business Manager on the 14th November and informed them that she was extremely burned out and couldn't keep going covering client calls, trying to cover any A/L in the office, her own role and responsibility for the on-call phone.

·        The Complainant also mentioned she was struggling but wanted to work and just needed support and so desperately wanted a set role and to just do her job as the uncertainty in all aspects of her life was extremely upsetting and stressful.

·        The following week the Complainant’s own business manager was off on annual leave and she and the other business manager were left to manage the team. During this week the Complainant had been out covering client calls, doing assessments, trying to do business manager tasks left for her by her own business manager and cover her own role. The Complainant received more bad news from the hospital and went to talk to the other business manager to tell her she` was not in a great place. The Complainant felt that the other business manager was extremely cold, and the Complainant felt that she was taking up her time.

·        The following day, Tuesday 22nd November, Marian Cronin came from HR and met the Complainant in the office. The Complainant discussed some options with Marian - i.e., less days/ fewer working hours and expressed a big interest in wanting to just complete her own work which she felt very happy about and more positive going forward,

·        On Friday 25th November the Complainant was just about to have her lunch when she received a text message from the business manager to say that Marian (from HR) had been in the office looking for her and asked the Complainant to call her. The Complainant called Marian immediately and was extremely shocked and taken aback. Marian was extremely blunt and quick speaking and just told the Complainant that she was being transferred to head office with immediate effect starting Monday 28th November and that she wasn't to discuss this with her team. She was told to take her belongings and that was it.

·        The Complainant contends that she was initially in shock and agreed to this transfer. When she hung up, she was so upset and taken aback she sent a text to Marian and asked if she could discuss this further as she felt it was so abrupt and she didn’t know if adding 30+km to her morning and evening travel was going to help her at this time.  She received no response to this text. The Complainant then received a call from the manager for Head Office - who in fairness was the nicest person to her and tried to have a nice calm chat and would welcome her on Monday to the Team.

·        The Complainant then went straight to the Firhouse office after this call and met the business manager who was just about to finish up work for the day at 2pm. The Complainant was visibly confused and upset, and I asked the business manager what happened, why was she being transferred and not to tell any of her colleagues. The business manager’s reaction was extremely frustrating as she stood looking at the Complainant with a blank expression on her face and said she had no clue what was happening.

·        The Complainant took her belongings and left. She could not begin to describe the feeling she had when she pulled out of that job that day, she felt complete emptiness and confusion and felt that she had let herself down, she couldn't drive, was so upset, she had to pull in. When she did, she received a call from the Firhouse business manager who informed her then that she did know this was going to happen and it was what suited the company best. The business manager said her sick days are hard for a smaller team to manage and that being sent to Northside would help her. The Complainant was extremely hurt by the lack of honesty on the business manager’s part and felt trust had been completely broken between them.

·        Over the weekend the Complainant states that she was extremely emotional, and she genuinely feels that if she did not have such a good network of friends and family, she does not know how she would have been.

·        The Complainant states that she genuinely feels that she was pushed out of her role and due to her sickness and upcoming appointments the Respondent felt that by sending her to Northside the Respondent knew they were setting the Complainant up to fail - and that she wouldn’t be able to afford the commute or be able for the commute and she would hand in her resignation.

·        On Wednesday 30th November the Complainant handed in her resignation of 2 weeks’ notice, she sent this resignation to both Firhouse business managers and received no response from either of them and this furthermore upset the Complainant that “they didn't even have the decency to respond to me like I didn't even exist”.

·        The Complainant visited her GP who signed her off work until the 14th December as she couldn't face going back to work and having the team feel like she was being punished by being sent to Northside.

·        The Complainant feels it was extremely unprofessional and shows a lack of empathy towards their staff and is extremely unfair. She helped the Respondent to make some incredible milestones and started her pension there.  She thought she would work there for years but feels she was given no choice in how they dealt with her. She has now started a new job and she is happy but still feels very upset about the situation.

·        The Complainant was informed that she would be moving from the Respondent’s Firhouse Office to its Blanchardstown Office. She texted Ms. Marian Cronin, the Respondent’s HR Officer, at lunch time on Friday the 25th of November 2022 (shortly after being informed of this change), to request a meeting to discuss it and Ms. Cronin responded shortly afterwards by text message to confirm they could meet as requested on the following Tuesday. The Complainant did not attend this meeting and on Wednesday the 30th of November 2022 the Complainant sent an e-mail to Ms. Iaesia McCrea and Ms. Lisa Faloon, employees of the Respondent, resigning from her employment.

·        The Complainant raised no formal grievance or complaint prior to submitting her resignation apart from her accepted request for a meeting with Ms. Cronin.

·        With regard to the reasonableness of the employer’s action attention is drawn to the Place of Work provisions in the copy Employment Contract and point out that the intention in moving her from the Firhouse Office to the Blanchardstown Office was to increase the support available to her.

·        It is further submitted that the Complainant was obliged to give four weeks’ Notice of her termination but that she resigned by e-mail of 30th November 2022. This resignation took immediate effect as the Complainant neither returned to work nor did she file any request for vacation, nor did she file any Medical Certificates from that point onwards.

·        Many e-mails exchanged between the parties which show the extent to which the Respondent had continuously supported and behaved sympathetically towards the Complainant. The Complainant is held in high regard by the Respondent and its staff, and the Respondent and its staff are personally very upset by the allegations made by the Complainant in general and in her WRC Complaint.

Onus of Proof

The Burdon of Proof on the employee in that they must prove that the employer’s behaviour was unreasonable and that their response in resigning was reasonable and. See Cox, Corbett and Neville “Employment Law in Ireland” (2nd Edn.) at para 24.48

·        In summary, there was no dismissal by the Respondent of the Complainant and even if there was it cannot be said that the employer’s behaviour was unreasonable or that the Employee’s response in resigning was unreasonable.

The Law.

In cases alleging statutory constructive dismissal the employee goes into evidence first as he/she bears the burden of proof as to dismissal. He or she must persuade the Workplace Relations Commission that resignation was not voluntary, Constructive dismissal is defined in s.1 of the 1977 Act as:

‘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 employee 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’.

Case Law.

One of the most quoted cases in claims of Constructive Dismissal is Conway v Ulster Bank UD 474/1981. In Redmond on Dismissal Law (Third Edition, by Desmond Ryan BL, section 19.14) reads as follows:

[19.14] There is something of a mirror image between ordinary dismissal and constructive 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 almost always in employee resignations. Where grievance procedures exist they should be followed: Conway v Ulster Bank Ltd. In Conway 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’. Where there are no formal procedures, advice should be taken as to the most appropriate way of presenting a complaint within the employment. At the very least an employee should communicate his or her grievance before resigning.

In the instant case the Complainant made no attempt to invoke the employer’s grievance procedure.

It is for this reason and this reason alone that I have to conclude that the complaint as presented is not well founded.

The Respondent has, I believe, lost a very good employee.

In the instant case the Complainant made no attempt to invoke the employer’s grievance procedure.

It is for this reason and this reason alone that I have to conclude that the complaint as presented is not well founded.

Constructive Dismissal.