Complainant

Respondent

Parties

Mhairi  Gaine

Health Service Executive

Complainant

Respondent

Anonymised Parties

Representatives

Mr. Ciaran White, McGovern Walsh & Co LLP Solicitors

Self-Represented

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-00055766-001

28/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00055766-002

28/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00055766-003

28/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00055766-004

28/03/2023

The Complainant commenced employment with the Respondent on 14th April 2021. The Complainant was a full-time member of staff, in receipt of an average weekly wage of €988.76. The Complainant’s employment was terminated by way of resignation on 30th September 2022.

On 28th March 2023, the Complainant referred the present complaint to the Commission. Herein, she alleged that conditions of her employment became intolerable to the point whereby she could no longer continue in her employment. In denying this allegation, the Respondent submitted that the Complainant was treated with respect at all times, and that she did not engage with the Respondent’s internal procedures prior to resigning her employment.

A hearing in relation to this matter was initially convened for 11th July 2023. As the matter did not finalise on that date, the matter was relisted for 16th February 2024, and was completed in that session.

Both parties issued extensive submissions in advance of the hearing. These submissions were expanded upon and contested by the opposing side in the course of the hearing. The Complainant gave evidence in support of her allegations, while a Line Manager gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross examination by the opposing side.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

In evidence, the Complainant stated that she is a registered nurse. She stated that she commenced employment with the Respondent on 14th April 2021 as a vaccinator and was promoted to the position of “clinical lead” shortly thereafter.  

On 25th August 2022, the Complainant attended a meeting with her line manager. During this meeting, the Complainant’s line manager made numerous unfounded allegations against the Complainant, such as changing the work roster without seeking the relevant management approvals. In addition to the same, it was alleged that the Complainant demonstrated favouritism towards certain members of staff by the manner by which she assigned certain shifts. The Complainant was informed that numerous complaints had been received in relation to the same, without specific details of the complaints being provided at this, or any other, time. In addition to the same, the Complainant was berated for requesting, from a more senior member of management, that her hours be reduced. In this regard, the Complainant had sought to have her hours reduced for some time, however the service needs did not allow for the same. The Complainant was also accused of lying to the general manager, in relation to ordering equipment, an accusation the Complainant absolutely denied. In addition to numerous other operational complaints, the Complainant’s line manager advised that she had issues with the Complainant’s general demeanour. She stated that she received numerous complaints from other staff members, but would not give details of the nature of those complaints or who made them. In this regard, it was put to the Complainant that she was not a team player and that she was generally difficult to work with.

Throughout this meeting, the Complainant was frequently not permitted to speak or respond the numerous allegations made against her. In this respect, it appeared that her line manager was reading from a prepared list of complaints on her desk. The Complainant asked, on a number of occasions, that the meeting be halted, and that she be permitted to see the list of complaints her line manager was referring to. On each occasion, this request was refused. While the Complainant accepted that she did receive a brief outline of the agenda of the meeting, she stated that this was received half an hour prior to the meeting and did not contain any of the actual substance of the complaints being raised against her. While the Complainant’s line manager did state that she would receive a list of the complaints after the meeting, this was never received.

Towards the end of the meeting, the Complainant’s line manager informed her that she had reported her to the General Manager and that if the Complainant did not give assurances in relation to her behaviour and performance, she implied that her contract would not be renewed.

The Complainant found this entire episode extremely distressing. Following the unfairness of the meeting, she felt that she could not return to work with her line manager. The Complainant made contact with her the General Manger in the days following this meeting, in an effort to resolve the issues. Following a brief conversation in this regard, the Complainant put her issues into writing. Following receipt of the same, the Complainant’s line manger invited her to a meeting on 30th September 2022. In advance of the same, the Complainant sought a copy of the report issued to the Respondent’s human resources department referred to by her line manager during the meeting of 25th August. Again, this report was not issued to the Complainant.

In evidence, the Complainant stated that she found that unsubstantiated and untrue allegations raised against her in the meeting of 25th August extremely difficult to accept. In circumstances whereby the Respondent as an organisation refused to the provide the Complainant with the nature of these allegations, by denying her request for the report issued to human resources, she felt that she had no option but to terminate her employment. In this regard, the Complainant corresponded with her General Manager advising that a meeting in respect of these issues would not be required and that she did not wish to extend her contract beyond the date of termination of her fixed term on 30th September 2022. 

By submission, the Complainant submitted that the meeting 25th August represented an entirely unreasonable action on the part of the Respondent. She stated that she was not given advance notice of the issues to be raised at the meeting, that she was not allowed to prepare for the meeting, that she was not permitted to defend herself during the meting itself and that numerous untrue and unsubstantiated allegations were raised during the meeting itself. Of particular concern to the Complainant was the allegation that various other nameless staff members had made inter-personal allegations against her, again these were only vaguely outlined to the Complainant and were not substantiated in any material fashion. Following this meeting, the Complainant felt that she could not longer work with her line manager and following the Respondent’s failure to provide any detail of the allegations raised against her, she submitted that her only course of action was to resign her employment and consider herself constructively dismissed.

By response, the Respondent denied that the Complainant had been poorly treated and submitted that she had not met the high bar for a successful complaint of constructive dismissal.

In evidence, the Complainant’s line manager disputed the version of events portrayed by the Complainant. She stated that she became the Complainant’s line manager in January 2022. In this regard, the witness stated that she had a positive and collaborative relationship with the Complainant for the majority of their respective engagements.  Notwithstanding the same, the witness noticed a distinct shift in the Complainant’s attitude towards her from mid-July onwards. On foot of the same, and a number of other inter-personal issues that had arisen in respect of other staff members, the witness decided to have a meeting with the Complainant whereby these issues could be discussed. One week prior to the meeting, the witness sent an email to the Complainant outlining the proposed agenda and the matters that were to be discussed. It was anticipated that this meeting would serve to clear the air in respect to some issues that had given the witness some concern in the previous few months of the Complainant’s employment. In this regard, the witness stated that she believed that the most appropriate course of action in this regard was to meet with the Complainant in a relatively informal environment, put the issues to the Complainant and allow her to have the right of response. In this regard, the witness denied that account of the meeting put forward by the Complainant and stated that the Complainant was permitted to answer each of the issues put to her. She denied acting in an intimidatory or adversarial manner during the meeting.

In answer to a question posed in cross-examination, the witness stated that the meeting was not convened under any of the Respondent’s formal grievance or disciplinary policies. In this regard she submitted that once she received the Complainant’s answers to the issues put to her, she intended to put the same to the General Manager to determine whether the disciplinary policy would to be engaged. She accepted that she did raise some inter-personal issues regarding the Complainant in the course of this meeting, but stated that she had been aware of most of these prior to the meeting. Notwithstanding the same, she conceeded that she outlined some further anecdotal matters that had arisen in an effort to further demonstrate the issues being raised. She stated that the Complainant was incorrect in her assertion that a report had been issued to HR in respect of these matters. She stated that throughout the meeting, she read from a prepared agenda that was shared with the Complainant in advance of the meeting.

By submission, the Respondent denied that they acted inappropriately during the meeting of 25th August. In this regard, they submitted that the purpose of the meeting was exploratory in nature with the intention of the same being to avoid more a formal process from being undertaken. In addition to the foregoing, the Respondent submitted in circumstances whereby the Complainant failed to engage with the Respondent’s internal grievance procedures prior to her resignation, her complaint must fail.

Regarding the present case, the Complainant has submitted that the Respondent acted entirely unreasonably in relation to a meeting convened between herself and her line manager. In evidence she categorised this meeting as being unnecessarily adversarial and aggressive. She further submitted that the meeting was procedurally unfair in that she did not receive an agenda in relation to the matters to be discussed, that she was not allowed to speak or respond to the points raised during the meeting and that she was not provided with an accurate account of the meeting thereafter. On foot of this adverse treatment, the Complainant stated that the relationship with her line manager had irretrievably broken down and that she could not return to work. By response, the Respondent submitted that the meeting of 25th August 2022 represented an opportunity for the Complainant and her line manager to discuss certain issues that had arisen in the course of her employment. While they accepted that this meeting may have been uncomfortable for the Complainant, they submitted that they were obliged to bring these issues to her attention. In this regard, they submitted that the meeting was an opportunity for the Complainant to give her account in relation to these matters prior to any more formal procedures being invoked. The Respondent also denied the procedural defects and allegations of unfairness raised by the Complainant.

In this regard, Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal as follows,

“…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 Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘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. If he does so, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an Adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

To succeed in a complaint of constructive dismissal, it is incumbent on a Complainant to demonstrate their engagement with the Respondent’s internal procedures. In the matter of Beatty v Bayside Supermarkets UD 142/1987 the Employment Appeals Tribunal held that,

“…it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited UD 474/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

In the matter of Travers v MBNA Ireland Limited, (UD720/2006), the Complainant’s role was changed by the employer in a manner which was “not in keeping with the contract of employment”. While the Complainant in this matter initiated the company’s internal grievance procedures, he resigned without lodging a final appeal. In this instance the Tribunal found that,

“…the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case”

And,

“…in constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

Regarding the instant case, the majority of the dispute between the parties related to the meeting of 25th August 2022. Having considered the evidence of both parties in relation to this meeting, it is apparent that the initial rationale for the meeting itself was not unreasonable. In circumstances whereby issues arise with an employee in the course of their employment, management have a duty to meet with the relevant employee and allow them an opportunity to present their version of events. While this process may not be comfortable for the employee in question, it does allow them a chance to advocate on their own behalf and provide their employer with the relevant information in respect of the matters that have arisen.

Notwithstanding the foregoing, certain issues arise regarding the manner by which the Respondent conducted this meeting. Primarily, it is accepted the Complainant’s line manager discussed or alluded to numerous inter-personal complaints in the course of the meeting. While the Respondent submitted that the Complainant was aware of most of these complaints, they conceded that certain “anecdotal” matters were discussed. Naturally, this caused the Complainant a great deal of concern, given that she did not have any of the specifics of how many persons made such complaints, the identity of such persons or the substance of the complaints themselves. In this regard, while it is noted that the Complainant raised numerous issues in her evidence, it is apparent that the primary driver of her disquiet was this issue and the potential ramifications that might arise from the same.

Following the meeting, the Complainant sought to raise matter with the General Manger and thereafter put the specifics of her complaint in writing. While this is the correct course of action, it is noted that the Complainant declined the offer of a meeting in relation to the grievance as raised, and instead sought terminate her employment on the grounds of a fundamental breach of trust.

As the authorities cited above clearly outline, in order to be successful in a complaint of constructive dismissal, a Complainant must demonstrate substantial engagement with the Respondent’s internal grievance procedures prior to resigning their employment. In the present case, while the Complainant commenced such an engagement, by way of her written complaints, it is noted that she subsequently withdrew from the process prior to any formal meeting in relation to the same being convened. Having regard to the foregoing, it cannot be said that the Complainant has established any such engagement with the internal procedures, and as a consequence of the same, her complaint must fail.

As consequence of the foregoing, I find that the Complainant was not unfairly dismissed within the meaning of the Act, and her complaint is duly deemed to be not well-founded.

CA-00055766-001 – Complaint under the Unfair Dismissals Act

I find that the Complainant was not unfairly dismissed.

CA-00055766-002 – Complaint under the Payment of Wages Act

This complaint was not pursued by the Complainant, and is deemed to be not well-founded.

CA-00055766-003 – Complaint under the Payment of Wages Act

This complaint was not pursued by the Complainant, and is deemed to be not well-founded.

CA-00055766-001 – Complaint under the Organisation of Working Time Act 

This complaint was not pursued by the Complainant, and is deemed to be not well-founded.

Constructive Dismissal. Grievance Procedures, Informal Meeting