UDD2311

1.Appeal of Adjudication Officer Decision No(s) ADJ-00025266, CA-00032133-001

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 7 March 2022 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. Labour Court hearings took place on 1 November 2022 & 17 January 2023. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Ms Deepa Philip (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00025266 – 14 February 2022) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer held that the Complainant’s claim that she was constructively dismissed by her former employer St James’ Hospital (“the Respondent”)was not well-founded. The Court heard the appeal on 1 November 2022 and 17 January 2023.

Position of Complainant

The Complainant’s employment was effectively terminated on the 7 December 2018 when she was told to leave the hospital pending an investigation. There was no investigation, and she was not allowed return to work. The Hospital no longer intended to be bound by her contract of employment, as they would not allow her to perform her duties. Accordingly, the Complainant was entitled to terminate her contract without prior notice to her employer.

In the alternative, the Complainant was constructively dismissed on the 19 May 2019 when she resigned her position, as it was reasonable for her to resign given the behaviour of the Respondent. The Complainant was given an ultimatum to “resign” and get a reference from St James’ hospital or face disciplinary action and dismissal. The ultimatum and the threat to report her to the nursing board were a means of terminating her employment without any fair procedures. She was never given an oral or written warning before the termination of her employment, nor was it ever clearly set out what in her performance could constitute such misconduct as would warrant a disciplinary process. The so-called resignation was not voluntary and that the purported acceptance of her resignation amounted in law to a constructive dismissal. The manner in which she was treated by the Respondent amounted to bullying and humiliating behaviour which led to her having to take extended sick leave because of the stress she suffered.

The Complainant was not in a position to avail of any grievance procedure when the Respondent would not allow her to return to work in any capacity. Her attempts to engage previously with the grievance procedures fell on deaf ears and the people against whom she had complained were permitted to carry out an “assessment” into her performance as a nurse which was unmerited, unfair, and caused huge damage to her reputation and self-esteem. This was a fundamental breach of the mutual trust and confidence requirement of her contract of employment and amounts to a repudiatory breach of the employment contract.

The Complainant referred the Court to the cases ofSheffield v Oxford Controls Co Ltd, Kwik-Fit (GB) Limited v Linehan [1992] IRLR 156, Charles Shinkwin and Donnall Millett EED044, Keane v Western Health Board (UD 940/1988) Martin v Yeoman Aggregates Ltd [1983] IRLR 48in support of her position.

The Complainant seeks reinstatement as the Respondent’s refusal to provide her with a suitable reference means that she cannot get alternative work in a public hospital or in a job with pension and sick leave entitlements.

Position of Respondent

The Complainant’s employment ceased on 19 May 2019, after she submitted her resignation one month earlier on 19 April 2019. The Respondent rejects that any breach of the Act occurred. There was no fundamental breach of the Complainant’s contract of employment.

The allegation that her employment was terminated on 7 December 2019 is rejected. On 7 December the Complainant was suspended on full pay pending an investigation into serious concerns about her working practices and knowledge. She was previously informed of these issues by letter prior to a meeting on 23 November 2018. By letter on 8 January 2019 the Respondent confirmed to the Complainant that her suspension from duty was a “precautionary measure” as provided in the Hospital Disciplinary Procedure which provides that “an employee may be put off duty with pay pending the outcome of an investigation”. The Complainant did not resign at that time and remained on paid suspension until her employment ceased on 19 May 2019.

The allegation that she was forced to resign is rejected. She was permitted to withdraw a resignation submitted on 24 January 2019. She had the support of her union official prior to making her final decision to resign. She did not withdraw that resignation. The Complainant was represented by her union official at all stages.

Management went to extraordinary lengths to assist the Complainant with her performance issues. The Complainant could have remained in her employment while an investigation into her performance and nursing practice was undertaken and addressed the concerns raised. She could have appealed any findings in line with the grievance procedure.

The Complainant’s grievances were not ignored. The Respondent found no evidence that the Complainant was subjected to bullying and harassment. She never made any specific allegation of inappropriate behaviour against any member of management other than Ms G. Allegations about other work colleagues were never raised by the Complainant or her union official with management. She did not exhaust the grievance procedure, which provides for a referral to an appropriate third party if a matter remains unresolved.

The Complainant was never told to resign, or her employment would be terminated. The Complainant’s stated reason for resigning was that she did not wish to engage in an investigation under the Hospital’s disciplinary procedure. The Complainant never put the Respondent on notice that she would resign because of her suspension, or because of the way that her grievance was dealt with by the Respondent. She could have appealed the decision to suspend her but did not do so. She made no reference that her relationship with work colleagues were a factor in her decision to resign. The Complainant has failed to establish the high burden of proof required to substantiate a claim of constructive dismissal.

The Respondent referred the Court to the cases ofMcCormack v Dunnes Stores UD1421/2008andSupermacs Ireland Limited v Sarah Ryan EDA 2131in support of its position.

Testimony

The Court heard testimony from Ms Deepa Philip, the Complainant, and from three witnesses on behalf of the Respondent:- Kara Fitzgerald – Assistant Director of Nursing, Sharon Slattery – Director of Nursing, and Brian O’Sullivan – Employee Relations Manager.

Testimony of the Complainant - Deepa Philip

Having worked initially as an agency worker, the Complainant was appointed full-time in 2006 and worked as a team leader with line management duties, and a preceptor with responsibility for teaching students about policies and procedures.

During 2018 relations with a colleague deteriorated after the Complainant withdrew her agreement to provide cover over Christmas, due to childminding difficulties. In April 2018 there was an incident with a patient who had a fall in the hospital. An action plan was put in place for the Complainant which she did not complete as she was absent on sick leave from June 2018 suffering from stress. In July 2018 the Complainant raised a grievance through her union about a confidentiality breach by her employer, asit was common knowledge that her colleagues knew that she was on an action plan and the common view on the ward was that she would fail the plan and be redeployed from the ward.

The Complainant attended a return-to-work meeting on 20 September 2018, at which management said it would investigate her grievance further. It was agreed that the Complainant would work a three long day week until it was appropriate for her to return to her original roster. On her return to work she did not receive any supports. She was given no timeframe for assessment. She did not receive anything in writing from management. The only correspondence she received was from her union official.

The Complainant refutes that two incidents arose relating to a medication error and the dressing of a leg wound prior to her suspension on 7 December 2018 when she was called to a meeting and told that the hospital was taking disciplinary action against her in relation to medication and time management issues. She was told to go home and was given no details about what would happen next. She contacted her union official but was not formally told she was suspended until January 2019 when she received a letter from Brian O’Sullivan, the hospital’s Employee Relations Manager. She was not told what investigation would take place or how long it would take.

Following her suspension, her union official told her that if she stayed in the hospital, she would “lose her PIN(Personal Identification Number)” and her fitness to practice as a nurse. Brian O’Sullivan told her union official that if she resigned, he would give her a reference. The Complainant said she felt very vulnerable and frightened. Brian O’Sullivan kept calling her to say, “you have to clear your file and go”. Her union official kept asking her “what do you want?”. She received an email from Brian O’Sullivan on 21 January 2019 asking for her final decision. She felt forced to resign and did so on 24 January 2019 by email addressed to Brian O’Sullivan.

Her GP certified her as suffering from stress, following which she rescinded the resignation. This was accepted by the hospital a meeting on 15 February 2019.

On 13 March 2019 she received a letter from Brian O’Sullivan. It set out what was discussed at the meeting on 15 February 2019 about the investigation and it was advised that she would be subject to disciplinary action. She attended a meeting on 17 April 2019. Brian O’Sullivan told her that she would“lose her PIN” and be reported about her medication and time management. She was given a deadline to decide about what she wanted to do. On 19 April 2019 she emailed Brian O’Sullivan asking to speak with him and her union official. She did not consider that email to be a resignation, but Brian O’Sullivan replied saying that he accepted her resignation. She contacted her union official but did not get any help so contacted another union representative. She also contacted ICTU. She went to the union seven times about the matter.

Under cross examination the Complainant said that she did not believe that her employment was terminated at the meeting on 7 December 2018. She remained in employment after that date.

When asked why she did not participate in an investigation, the Complainant said that she had worked for 14 years without a complaint. She was a Team Leader and a Preceptor, and she wanted proof if her work was not good. No one explained that she could make those arguments at the investigation. The Complainant accepted that she said that she would prefer to resign rather than lose her PIN.

When asked about the letter dated 13 March 2019 from Brian O’Sullivan which set out details of the investigation under the disciplinary policy, the Complainant said that nobody explained the process to her. She did not understand the difference between an investigation and a disciplinary process. She received a letter from her union official dated 24 April 2019. Her union official told her that if she went to a disciplinary she would lose her PIN. She advised her to resign and get a reference. She didn’t explain that she had the option to engage with the disciplinary process.

When asked who initiated a discussion about resigning, the Complainant said that she received a call from the union on 18 December 2018 and later in January 2019 from Brian O’Sullivan. She was unaware of the discussion between the respondent and her union official following the meeting on 7 December 2018.

The Complainant acknowledged that to retain her licence she must be competent in her work. She said that she did not challenge her resignation, because she was scared and didn’t want to lose her PIN. She was happy to resign as long as she got a reference. She accepted that she signed the resignation form and stated the reason for her resignation as personal reasons, but she did this under pressure and felt she was forced into doing so by the hospital.

After the Complainant resigned, she applied for a job in Cappagh Hospital. She did not see the reference that the Respondent sent but was made aware that they would not fill out the reference form. She applied for a job in St Vincent’s Hospital, but St James’ would not give her a reference.

Testimony of Kara Fitzgerald – Assistant Director of Nursing

Ms Kara Fitzgerald, Assistant Director of Nursing,conducted a return-to-work meeting with the Complainant in September 2018. She assigned her to work alongside Ms SF. Within a few hours issues arose relating to time and medication management. At that point she decided to make the Complainant’s position supernumerary, so she was over and above the staffing level in the ward. Thereafter she or her colleague RD met with the Complainant on a daily basis. She expected to see an improvement, but this did not happen.

Managing the Complainant was taking up significant resources. In November, she invited the Complainant to a meeting on 23 November 2018 and by letter set out management concerns in five areas of practice: (i) medication competency, (ii) nursing care planning, (iii) communication, (iv) documentation, and (v) time management. The meeting was attended by the Director of Nursing and the complainant’s union representative. A further review was scheduled for two weeks later.

After that meeting two further incidents arose. The first incident occurred on 28 November 2018, when the Complainant signed off medication in error and had to restart her medication competency. The other incident related to the dressing of a leg wound. The Complainant was placed on administrative leave on 7 December 2018. Ms Fitzgerald did not attend the meeting when the Complainant was told of this.

Cappagh Hospital requested a reference after the Complainant resigned. Ms Fitzgerald did not fill out the reference form requested and instead sent the reference that was agreed between the hospital and the INMO. She was not involved in giving a reference for St Vincent’s Hospital.

Under cross examinationMs Fitzgerald said that did not take a note of the return-to-work meeting in September 2018. She undertook to look into matters raised by the union on the Complainant’s behalf but did not commit to conducting an investigation as inferred in a union letter dated 21 September 2018.

She decided to make the Complainant’s role supernumerary as she was not happy for her to work independently. It was clear that there were immediate issues in need of review, and she had to act to safeguard patients. A person was assigned to the Complainant on a 1:1 basis to ensure that she met the competencies required. It is extremely unusual for a senior staff member to be appointed on a supernumerary basis. It was never done before.

When asked about the absence of documentation about performance issues on file, Ms Fitzgerald said that the Complainant kept the signed copies of these documents. When asked how such performance issues could arise when there was no previous history of underperformance, Ms Fitzgerald said that colleagues work in teams and may assist each other when working shifts. Issues can come to light where there is an error or a complaint, and patients aged over 65 years may not complain. When asked why the disciplinary policy was not invoked, Ms Fitzgerald said that hindsight was a wonderful thing. She said that she had been involved in applying the disciplinary policy to others. She tried to give the Complainant as much assistance as possible as she wanted her back on the ward.

Testimony of Sharon Slattery – Director of Nursing

Ms Sharon Slattery, Director of Nursing, told the Court that nurses who come from outside the jurisdiction are referred to as “adaptees” and generally undergo a six-week programme before registering with the NMBI (Nursing & Midwifery Board of Ireland). The Complainant underwent an initial 9-week programme in 2011 and a further 11-week programme in September 2018 when she was in a supernumerary role.

Ms Slattery attended a meeting on 23 November 2018 with the Complainant and her INMO official to discuss her performance issues. The Complainant and the INMO acknowledged the extraordinary levels of supports in place. It was agreed that a further review meeting would take place in two weeks’ time. Two further issues arose before that meeting took place relating to a medication error and a wound dressing. These were not the type of errors expected of a nurse working at the hospital. The Complainant was suspended on 7 December 2018. Ms Slattery had no further contact with the Complainant after her suspension until April 2019.

Ms Slattery said that she wanted an investigation, but she understood that the Complainant did not want it to proceed. The investigation was delayed for many weeks as they waited for the Complainant to be declared medically fit. After she was declared fit, discussions continued with the INMO. When asked why an investigation into such serious performance issues did not happen, Ms Slattery said that the Complainant did not want to go down that route.

Ms Slattery said that the Hospital never asked the Complainant to resign. She first became aware that the Complainant wanted to resign after the meeting in November 2018. She could not remember exactly what conversations took place, as she was liaising with HR about the investigation, and HR was liaising with the trade union. She knew that the Complainant was very clear that she did not wish to participate in an investigation and that she wanted to resign.

At a meeting on 17 April 2019 the Complainant stated that she wanted to return to work and again raised the matter of her grievance against Ms G. It was explained to her that an investigation was required before she could return to work, and that any delays in progressing the investigation were due to the Complainant. Ms Slattery said that it was not workable for the Complainant to work in another location, as staff are not transferred to other areas in response to performance issues.

Ms Slattery said that the reference drafted for the Complainant was requested by and agreed with the trade union. She did not discuss it with the Complainant. It was agreed that the only reference that would leave the organisation was the one agreed with the trade union official.

Under cross examination Ms Slattery agreed that the Complainant had worked for 14 years without any difficulties or complaints about her work. It was possible for a nurse to work within a team and not be competent in all areas. It was also possible for an individual’s competencies to drop for external reasons. In such cases, the hospital puts supports in place to bring an employee’s competencies back.

Ms Slattery said that on 28 May 2019 she wrote to the union to confirm that the grievance that was raised by the Complainant the previous July 2018 was investigated locally at that time.

Testimony of Brian O’Sullivan – Employee Relations Manager

Mr Brian O’Sullivan, Employee Relations Manager, became formally involved in matters in January 2019. Prior to that he was in the background helping management. He wrote to the Complainant on 8 January 2019 advising her that she was on paid suspension. The delay in issuing the suspension letter was partly because of the Christmas break and partly because of ongoing discussions in the background. He did not attend the suspension meeting in December but understands that the matter of resignation came up at that time.

On 24 January 2019, the Complainant resigned by email, and he confirmed acceptance. Her union official subsequently informed him that the Complainant wished to retract the resignation, as she had a doctor’s certificate stating that she was not fit to make a rational decision. He arranged for her to be seen by occupational health and told her that she did not have to resign. An appointment became available at short notice, which the Complainant could not attend. The Complainant was subsequently assessed by the doctor and certified fit to engage in any process.

A meeting was held on 17 April 2019 to discuss the outcome of the Complainant’s grievance and the Complainant’s options in relation to the investigation and her return work. Ms Slattery told the Complainant that her grievance was dealt with locally and that she had accepted that at the time. The Complainant said that she did not want to undergo an investigation.

Following that meeting, on 19 April 2019, the Complainant emailed her resignation to Mr O’Sullivan. He accepted the resignation. He forwarded the email to her trade union official and requested that she arrange to meet with the Complainant and ask her to fill out the resignation form. He said that he knew that the email would initiate another conversation between the complainant and her union official, which would enable them to come back to him if there were any further issues. He received the completed resignation form seven days later.

Under cross examination, Mr O’Sullivan said that he was aware of a grievance letter submitted in July 2018, which cited the Complainant’s stress and loss of 10kg in weight. He spoke with local management about investigating the matter but was not directly involved. He was aware that the Complainant was referred for a medical and did not have to work with Ms G. Instead,she was assigned to work with Ms SF. The Complainant and her union official accepted that outcome at the time. Grievances happen all of the time. 99% of grievances are resolved informally and no records are kept of informal investigations.

Mr O’Sullivan was not involved in managing the Complainant’s performance issues, as those matters was dealt with locally. He was aware of a substantial number of forms signed by the Complainant during this period. There were 40 such forms at the WRC hearing signed by the Complainant.

The Complainant was suspended because of serious concerns about her performance. It is normal practice to place a person on suspension where there are serious concerns, or where an employee is deemed unsafe to work on a ward. The procedures are agreed with the trade union. Mr O’Sullivan said that he was not in a position to decide if someone is fit to do their job and that he takes the lead on this from clinical professionals. He was told that the Complainant could not remain on the ward. It was clear that an investigation was required. He explored other options but was told that the Complainant’s errors were so basic that it was not suitable to leave her in the hospital.

Mr O’Sullivan said that the disciplinary procedure is not invoked before an investigation. Suspension is not a disciplinary measure. It is a normal part of the process and is permitted when it is unsafe to leave someone in a role. Suspension was a serious matter, but the hospital had no choice in this case. When asked how,in the absence of a letter,was an employee to formally know why she was suspended, Mr O’Sullivan said that she was told by her union official. If an investigation had commenced the hospital would have formally written to the Complainant setting out exact details and the process to follow. Two individuals with no involvement would be assigned to draw up terms of reference and, after assessing the facts, decide about escalating the matter to a disciplinary process. This did not happen in the Complainant’s case.

Mr O’Sullivan said that he knew that the matter of resignation was discussed in December 2018, as he was told that by Ms Slattery. In email correspondence in January 2019, he made it very clear that the hospital needed to press ahead with a formal investigation. The Complainant had a choice to stay and be investigated or to go. When asked about the complainant’s email in January 2019 stating “I donot want to resign but I donot have any other option (sic)”,Mr O’Sullivan said he took that email as a resignation, as her union official made it clear that the Complainant did not want an investigation. When she subsequently advised that she wished to retract her resignation, he said that was fine and arranged for her to see occupational health.

Mr O’Sullivan wrote to the Complainant’s on 13 March 2019 advising her that the hospital had to proceed with an investigation which could result in disciplinary action up to and including dismissal. He said the letter as drafted took account of her medical situation.

He received an email on 19 April 2019 which said, “I will resign”. He confirmed acceptance on 23 April and sent it to her union official so she could discuss it with her. He was never informed that she wished to withdraw her resignation.

The Complainant was assessed by occupational health after her resignation, as the doctor was unaware that she had resigned. Mr O’Sullivan said that he was aware that the Complainant had over 10 meetings with the INMO and had raised her concerns with other union officials.

The Law

Section 1 of the Act defines ‘dismissal’ for the purposes of the Act in circumstances where:

• “(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
  
  (b)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”.

• “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

• “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.”

• (a)that the test is objective
  (b)that the test requires that the conduct of both employer and employee be considered

• (d)the conduct of the employer complained of must be unreasonable and without proper cause and its effects on the employee must be judged objectively, reasonably, and sensibly in order to determine if it is such that an employee cannot be expected to put up with it.

• •On 7 December 2018 the Complainant was suspended on full pay pending an investigation.
  •The Complainant received formal confirmation of the suspension on 8 January 2019.
  •The Complainant resigned (initially) on 24 January 2019.
  •On 15 February 2019 the Complainant sought to withdraw the resignation, when certified unfit to make a rational decision. She later rescinded that resignation.
  •On 13 March 2019 the Complainant was advised by letter that the hospital had no alternative but to commence an investigation, which “could result in disciplinary action up … to and including dismissal, and if deemed appropriate a report sent to the NMBI”.
  •On 17 April 2019 a meeting was held with the Complainant and her union official to discuss her grievance from July 2018 and matters relating to the investigation.
  •On 19 April 2019 the Complainant emailed the Respondent saying:- “Ido not wish to go to disciplinary action, I will resign, but before that I want to talk to (name of union official) few things.I rang (name of union official) but I did not get her I want to see you Brain, Can you help me to advice few things please (sic)”.
  •The complainant’s resignation was accepted on 23 April 2019.
  •A completed resignation form was submitted on 30 April 2019, citing “personal reasons” as the reason for her resignation.
  •The Complainant’s employment terminated on 19 May 2019.

	Signed on behalf of the Labour Court
	Katie Connolly
NCL	______________________
1 March 2023	Deputy Chairman