Complainant

Respondent

Parties

Marie-Noël  Coleman

Dr Fiona Kelly

Representatives

Ciaran Cummins BDM Boylan Solicitors LLP

William Wall Peninsula

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-00052464-001

30/08/2022

The Complainant is a nurse by profession and commenced work as practice nurse in 2002 at the Respondent medical practice. The Respondent is a Principal in the medical practice. The Complainant submits that the conduct of the Respondent created an intolerable situation for her to the extent that she believed the Respondent repudiated the contract, and she had no option but to resign and submit a complaint of unfair dismissal by way of constructive dismissal.

The Respondent denies the complaint and submits that it did not act in any way where the Complainant could properly say that the Respondent repudiated the contract.

The following is a brief summary of the evidence of the Complainant.:-

The Complainant had extensive experience of nursing both in the UK and Ireland. She had a very good relationship with the previous Principal of the practice, Dr A.  The Respondent commenced as an employee practitioner but when the Respondent became Principal partner after the retirement of Dr A, there was a major change in the practice. This change was accelerated with the arrival of a new practice manager Ms Olivia Holland in 2018. The Complainant described the change as seismic whereby the collegiality disappeared, and communication became more difficult. She found both the Respondent and the Practice Manger to be unresponsive and unhelpful with concerns she had about practice procedures. These were never addressed formally by the Respondent nor the Practice Manager. She was never advised about a grievance procedure, nor did she see one during the duration of her employment. The Complainant accepted that she was not great when it came to IT systems. During the Covid-19 pandemic the Complainant stated that no clear guidance was given from management as to what the correct procedures were, and how they might be implemented.

On 19 November 2020 the Complainant was driving in the town when she noticed that a ‘flu vaccine clinic was taking place at the surgery. She was not informed about this. She parked up the car and entered the building in a state of distress and confronted Ms Holland and the Respondent in what she admitted was not an appropriate manner. She apologised on the following day for her behaviour and believed this apology was accepted.

On 25 January 2021 the Complainant overslept and woke at 11am. She was to have started work that day at 09.30am. She rang Ms Holland and told her she would be in 10 minutes later. Ms Holland told her not to bother and she understood this to mean to come in for the afternoon shift instead, instead of the morning. The Complainant arrived at the surgery at 2pm but was told to go home as cover had been arranged with the other practice nurse, Ms B, who later told the Complainant that she had been called to cover the afternoon surgery at 12 pm that day, a full hour after the Complainant had contacted Ms. Holland. The Complainant submitted her hours for the afternoon of that  day because  she believed she was available for work. Subsequently, the Complainant received a voicemail, not meant for her, where the Respondent and Ms. Holland, were discussing her claim for hours that day. The voicemail was played back at the hearing; the Respondent is saying “Let her f****** flip then” and We’re not paying her” in relation to the hours the Complainant submitted for 25 January. The Complainant was shocked at the content of this conversation where she believed that management were conspiring against her, and she felt further alienated in the workplace as a result.

On 3 February Ms Holland approached the Complainant and told her that she knew the Complainant wanted to talk the Respondent for some time and a meeting was ostensibly arranged for her to air her grievances. However, at the meeting on 4 February where she aired her concerns the meeting completely flipped to one of a disciplinary nature where she received a written warning for her behaviour at the surgery on 19 November. The Complainant claims she never received an actual copy of this warning.

The Complainant said that matters did not improve, and she lost all hope that her concerns would ever be listened to. No staff meetings took place and the lines of communication remained down. On the advice of her GP, she went on sick leave on 17 July 2021. She resigned without returning to work on 1 June 2022.

In cross examination the Complainant accepted that she was not great at taking notes. The Complainant also accepted that she was a member of the INMO at the material time and had sought advice about her grievances. When I asked the Complainant as to why she failed to make a bullying complaint, she acknowledged that she did not believe she was being bullied or harassed  at the practice.

Summary of the Complainant’s Legal Argument:

The Complainant cited Western Excavating (ECC) ltd. v. Sharpe [1978] ICR 221 and Berber v. Dunnes Stores Limited [2009] IESC 10 regarding the “contract” and “reasonableness” tests when constructive dismissal is at issue.

The Complainant submits that whilst some the issues of referred to, taken on their own, are not sufficient to ground a claim for Constructive Dismissal, the issue is that each of the concerns were never dealt with in any meaningful way by the Respondent. The Complainant felt marginalised and unheard, and formed the very reasonable view that she was not wanted or valued by the Respondent. The Disciplinary meeting of 4 February, which was conducted in a remarkably unfair manner, together with the Voicemail of 29 January reinforced this view. These incidents were indicative  of the unreasonable conduct of the Respondent and were significant breaches also of the contract of employment within the meaning of the “contract test”.

The following is a brief summary of the evidence of the Practice Manager, Ms Olivia Holland:-

The witness commenced employment in 2018 at the practice. She believed the practice needed to be streamlined in line with the introduction of best contemporary systems and   practice for patient welfare and staff. She had concerns that matters concerning employees was done somewhat on an ad hoc baisand she drafted an employee handbook, containing a grievance procedure,  which was available for staff in reception. This was subsequently uploaded online to staff as a shared document. She believed the Complainant saw herself as an advocate for staff.

Describing the events of 19 November 2020, the witness said that this was at the height of the Covid-19 pandemic and in the absence of Covid vaccines, Thursday was set aside that week to administer ‘flu vaccines. She said the Complainant entered the surgery on that morning and shouted at the witness  “What the fuck is going on here. Why wasn’t I told about this” in front of two patients and then made her way to Dr Kelly’s room. The witness said she was shocked and stressed at the behaviour of the Complainant.

On 25 January 2021 the Complainant did not show up and they could not cancel clinics because patients had been fasting and they proceeded the best they could without a nurse. The witness said she told the Complainant not to come in when she eventually phoned in at 11.00. The witness booked alternative cover for that day. The Complainant was paid out of holiday hours for that day.

On 3 February the witness approached the Complainant and said that a meeting would be held the following day where she could bring up her concerns and also that other issues needed to be discussed. The meeting was cordial to begin with and the Complainant was allowed to speak her mind. The Complainant spoke about the lack of communication and management spoke about the Complainant’s lack of notetaking and bad timekeeping. The Complainant was not happy about a written warning for her behaviour on 19 November but never appealed this warning.

There was a decision to cover maternity absence for Nurse. A, the other clinic nurse, on a job share basis. The Complainant resented not being asked to cover that period. The witness said that she spoke a number of times to the Complainant about taking proper notes and closing out files properly. The Complainant never complained about stress to the witness. She was very surprised to receive a resignation letter from the Complainant.

In cross-examination the witness said that everyone in the practice was aware that there was a staff handbook available in reception, and later online for use. On Covid protocols she said that everyone was spoken to individually. On the flu vaccines she said that Nurse B’s skills were better suited to the administration and recording of vaccinations. The incident of 19 November was not dealt with immediately because everyone was busy. She stated that the Complainant was very capable but not always up to the standard required when it came to performance, like efficient record keeping and proper timekeeping. The witness accepted that the disciplinary meeting of February 4, 2021, was not carried out in line with proper procedures nor was the Complainant informed beforehand of any disciplinary dimension to the meeting. The witness said that she put the envelope with the written warning in the nurse’s tray for collection by the Complainant.

A brief summary of the evidence of the Respondent, Dr Fiona Kelly, Principal in the medical practice:-

The witness said she commenced employment in the medical practice in 2009 before taking over as the Principal partner in 2017. She noted that there was a close working friendship between the Complainant and Dr A, her predecessor. The Complainant would go directly to Dr A with any concerns she had. The witness said the practice was ad hoc when she took it over, everyone seemed to be happy, but she wished to see it streamlined because patient care was paramount.

When the witness took over the practice, she expressed her concerns to the Complainant on multiple occasions about her performance, particularly regarding notetaking and proper file keeping for patients.

On 19 November 2020, on the day of ‘flu vaccinations, the Complainant barged into her office shouting “What the fuck is happening here”. The witness was on the phone to a palliative care patient and was shocked and distressed at what was happening. There were also other patients at reception in the surgery who witnesses the behaviour of the Complainant. On the following day the Complainant approached the witness and said “look, about yesterday…” but the witness said she could not deal with it then  and  beckoned the Complainant away.

The witness said that the Complainant was very good with women’s health, older people, and smear tests; her heart was in the right place, and she was popular amongst the patients,  however,  she had a problem with timekeeping and with proper recording of medical procedures. It was her decision to put Nurse B in charge of vaccinations because she had strong qualities like good timekeeping and proper recording skills.

On the recording of the Voicemail that was inadvertently sent to the Complainant, the witness said  the message was exhibited out of context, and whilst she regretted what she said, she was very upset that the Complainant was claiming for hours which she did not work. The witness said that the Complainant aired her concerns at the meeting of 4 February but did not mention the existence of the Voicemail as being a problem.

The witness said she came into the office on 9 July 2021 and discovered that the Complainant was in the process of faxing  a Breast Check application form with  the witness’s stamp and signature. (A copy of the form was exhibited). The witness had never seen the patient and the patient should have been in to see her. She was shocked at this. This was an inappropriate referral. Her reputation was at stake with such a practice. Initially, the Complainant did not accept that she was in the process of sending off the form. The Complainant went on sick leave shortly afterwards on 17 July 2021 and never returned to the practice.

In cross examination the witness said that there was not a history of formal meetings at the practice when she was in charge. Most interactions were verbal.  She respected the Complainant as a nurse, but her form filling was problematic resulting on occasions when blood samples were rejected. She felt that when Dr A retired, the Complainant did not respect her as her employer. She rejected the argument that the employee handbook was not available to the Complainant but instead insisted that it was available to all staff in hardcopy or online. On the incident in the ‘flu clinic she denied that the Complainant was not told about it saying that every staff member knew it was on that day. It was her decision to appoint Nurse B to take charge of vaccinations whom she knew to be reliable. She did not believe that the Complainant’s forte was the administration of vaccines. She accepted that when she said “Let her flip “in the Voicemail she denied that it meant that she wished the Complainant to have some sort of breakdown, but instead that she would have an outburst of rage.  

Respondent’s Legal Argument:

 The Respondent cited numerous cases which it claimed were in support of its argument that the there was no fundamental breach of the Complainant’s contract and that the Respondent had acted reasonably at all times.

The Respondent contends that the Complainant was a valued member of staff with several issues regarding her conduct and performance which the practice manager was dealing with on a regular basis. The Respondent submits that the Complainant had a major issue with speaking with the Respondent as her employer which contrasted with the friendly  relationship she had with Dr A. The practice needed to be run on a professional basis and this streamlining and new practices was being led by the practice manager, but this change was strongly resisted by the Complainant.

Applicable Law:

Section 1 of the Acts   defines constructive dismissal 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 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.”

There are two tests for determining if a constructive dismissal has occurred. The first test is the “Contract Test”. The Complainant opened the   Western Excavating (ECC) ltd. v. Sharpe [1978] ICR 221:  where it was stated:

 “If an 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”.

In the case of Debbie Kearns v Silverfern Properties Ltd. (UD2428/2010) the EAT held that “In order to succeed in a claim of constructive dismissal a claimant must show, that either their contractual terms were altered in such a way, going to the root of the contract, as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal.”

The burden of proof in constructive dismissal cases is firmly on the Complainant. In   Nicola Coffey v. Connect Family Resource Centre ltd. (UD 1126/2014), it was held by the Employment Appeals Tribunal that “the bar for constructive dismissal is very high.”

In considering the “contract test” I have to reflect on whether a term(s) of the Complainant’s contract was breached by the actions of the Respondent such as to make it reasonable for the Complainant  to determine that the contract had been terminated. The evidence from both sides did not throw up any substantial conflict in facts, except perhaps on the availability of the Staff Handbook and the receipt of a copy of a written warning. My decision on this test is based around the argument as to whether the purported lack of communication on matters of concern to the Complainant over a period of time , the flawed disciplinary meeting of 4 February 2021  and the contents of the Voicemail could be constituted, together, as a  repudiatory breach of the contract by the Respondent , so as to justify the claim of constructive dismissal.

The Complainant also cites the “Reasonableness Test”. This is a testin which there is a burden of proof on a Complainant to establish that the behaviour of an employer was so unreasonable that it was reasonable for the employee to terminate their contract of employment. There is also a reciprocal duty on a complainant to show that they acted reasonably.

Both parties opened the Supreme Court case and in particular Berber v. Dunnes Stores Limited [2009] IESC 10  where Finnegan J stated:  “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 this regard 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.”

The Respondent similarly relied on Berber where Finnegan J outlined  the test on repudiation of the contract of employment  as follows:

“The appropriate test must be applied to that conduct. In relation to the test the following matters are to be noted:-

1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

4. 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.”

The question then to address is whether there was a breach of a fundamental term, expressed or implied in the Complainant’s contract, which indicated that the Respondent no longer intended to honour the contract. That normally arises, for example, in cases where the employer refuses to pay wages, or it could arise where there is bullying and harassment, thus undermining the essential term that the parties must have mutual trust and confidence in each other. Significantly, the Complainant when asked by me as to why she did not make a bullying/harassment claim when she was in employment, she answered that she did not feel she was bullied or harassed. 

Following the guidance of Finnegan J in Berber when looking at the conduct of both parties, I am satisfied the Respondent conducted a clearly  flawed disciplinary procedure where the process was unfair and the Voicemail that was inadvertently sent to the Complainant portrayed an unacceptable outburst aimed at the Complainant, albeit not intended for the Complainant’s ears.   However, there was convincing evidence that the Complainant was hostile to the new management structure and practices, had serious timekeeping issues, behaved inappropriately when she burst into the clinic on November 19 and was involved later in a serious inappropriate referral of a patient to a Breast Clinic using the imprimatur of the Respondent in a reckless manner. This does not absolve the Respondent from its unprofessional manner at times when it dealt with the Complainant, but when balanced up, I find the Complainant engaged in serious unreasonable behaviour so as to weaken her argument that she was targeted in any unjustified way.

 The Complainant claims that her treatment by the Respondent was so oppressive that she could not be expected to tolerate it any  longer and as a consequence her decision to resign amounted to a constructive dismissal by the Respondent. I did not see evidence to support that contention. The Complainant was obviously content with staff relations and how her problems were dealt with in the past  by Dr A but she did show an antipathy to the Respondent when she took over and this was exacerbated by the arrival of the practice manager who sought to introduce stringent recording on patient  files, and new streamlined systems based on IT. Convincing uncontested evidence was given that the Complainant had difficulties with these new demands and by her own admission was not up to standard on IT.  The Complainant was patently unhappy with these changes, but the creation of this unhappiness cannot be construed as oppressive behaviour by the Respondent. The Complainant admitted in evidence she was not bullied or harassed. The Complainant may, from her perspective, have been justified in resigning her employment, however, I am satisfied that the Respondent’s shortcomings when it came to communication and procedures did not meet the threshold of being  a breach of a fundamental term of the contract of employment, nor could it be considered  behaviour so unreasonable that the Complainant had no other option but to resign.

For the reasons outlined above, I find that the Complainant was not unfairly dismissed by way of constructive dismissal. 

For the reasons outlined above, I find that the Complainant was not unfairly dismissed by way of constructive dismissal. 

Unfair Dismissal, Constructive Dismissal.