ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00041549
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | A Care Provider |
Representatives | Self-represented | Peninsula |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00052725-001 | 09/09/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00054895-001 | 06/02/2023 |
Date of Adjudication Hearing: 13/11/2023 & 14/02/2024
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard and to present any evidence relevant to the complaints. Detailed submissions were made by both parties in advance of the hearing. The complainant gave evidence and was cross-examined by the respondent’s representative under oath. The hearing was adjourned on 13th November 2023, as the respondent still had several witnesses to give evidence. The hearing was reconvened on 14th February 2024.
I have decided to exercise my discretion to anonymise the parties and witnesses due to the possible identification of minors in a care setting and the nature of the protected disclosure forming part of the constructive dismissal case.
Background:
The first complaint is the respondent has altered or made a change to the terms and conditions of employment. On 8th September 2022, management sent an email requesting the complainant not attend her next two shifts. The second complaint is that the complainant was constructively dismissed and had no option but to resign her post on 9th September 2022. |
Summary of Complainant’s Case:
Summary of Complainant’s Evidence The complainant commenced employment with the respondent as a Social Care Worker on 11th November 2021. She was paid €2,220 gross per month. She resigned from her post on 9th September 2022. She outlined that when she commenced, she was left to lone work with a service user in a hotel without any induction or training. Over the next number of months, she witnessed issues and alleged that the organisation was not being managed appropriately. She was also concerned about staffing levels and became aware that the care setting was under inspection by an outside agency. She was disappointed that staff were not updated on these investigations. She was also concerned with the rights and dignity of young persons in care. In May 2022, she witnessed alleged physical abuse of a service user. She was also concerned on how staff were communicating by text. She said that staff were working under a threat of a unit closure and could be out of work. She said that she became very distrustful of management given what she had witnessed during her employment. She made a protected disclosure to an outside agency on 6th August 2022. When she was rostered to work on 16th August 2022, she complained to management. There had previously been complaints about certain staff she was rostered with. Arising from this complaint she was contacted by a manager who was seeking more information. She did not attend any meetings with management as she suspected that they had become aware of the protected disclosure which she did not want to discuss. She attended a training session on 25th August 2022 with colleagues. She became upset and had to leave the training as training videos had triggered issues in her past. She gave evidence of the change in her terms of employment. This arose when she was notified by email the day before not to attend a shift on 9th & 12th September 2022. She outlined that she had no option but to resign on 9th September 2022 due to the way she was being treated by management. Prior to her resignation, there were communications with management as she had informed them about the stress she was under. She suspected that when she was requested not to work the two shifts that this arose from the earlier protected disclosure. She did not want to engage with management at this time. She felt management had no right to refuse her to work her two shifts. Under cross-examination from the respondent’s representative, she was questioned on her awareness of procedures and whether she made specific complaints on issues during her employment. She was asked about her refusal to meet management prior to her resignation. She replied that management should already be aware of the issues, and they did not need her complaints for them to follow up. It was put to her that management support was available and staff were never discouraged from making complaints. She replied that she had received a letter from an outside agency confirming that her protected disclosure complaints were valid and would be fully investigated. Closing Submission of Complainant The complainant completed her evidence by stating that it was the treatment by management which left her with no option but to resign. |
Summary of Respondent’s Case:
Summary of Care Manager 1’s Evidence (under affirmation) The manager outlined her role as providing guidance, supervision and oversight of service users and staff. She was aware from dealings with the complainant that she struggled with authority, and it was her role to provide support to her. She was not aware of the protected disclosure until management were made aware by the outside agency. She was aware that the complainant left the training on 25th August 2022, in a distressed state. She contacted her through text message, and it became clear that the complainant did not want to discuss any issues with her. She outlined that rosters were revised to facilitate the complainant not to work alongside other staff although inevitably there had to be some contact on the changeover of shift. Her last point of contact with the complainant was after the training on August 25th, 2022. She was cross-examined by the complainant on not providing full support to her when it was required. She replied that she was on leave for a period and her concerns were passed to other managers. Summary of Senior Manager 1 Evidence (under affirmation) The manager gave evidence that she was the trainer on 25th August. The training event covered children first guidelines along with practical examples and videos. There were 12-14 staff present and as the training can be stressful, participants were advised of this in advance. She met the complainant on a one-to-one to discuss issues that arose during the training. During this discussion, the complainant made allegations and threatened to go public on these. She was not given any details of the allegations. She was aware that the training videos had obviously triggered past issues for the complainant. As the complainant was clearly upset, she arranged for her shift to be covered that evening and ensured that she was paid. She had further contact with the complainant through emails and requested to meet with her to provide support. She said the complainant was reluctant to discuss and would not attend a meeting. She was not aware that a protected disclosure had previously been made. Summary of Senior Manager 2 Evidence (under oath) The manager outlined her role as complaints officer, auditing of centres, along with training responsibilities. She gave evidence that the complainant received and signed for the employee handbook. She said that no grievance was submitted by the complainant around August/September 2022. The complainant had made an earlier complaint in March 2022 which was handled locally. She was aware that the complainant did not want to work with some staff due to previous issues. She reached out to her to get more information on this matter and investigate further, if necessary. Initially, she approached the complainant informally. As there was no engagement, she handled the situation in a more formal manner. The complainant refused to attend a meeting to discuss the issues. Shen obtained advice to provide the complainant with information on how to make a complaint. She put into evidence a response from the complainant outlining that she did not want to be involved in any investigation, was seeking new employment, and was only working till then. The complainant sought a support person to attend a meeting. She advised her that a trade union representative or a colleague could attend. No meeting took place. She said she became aware of a protected disclosure complaint on 22nd December 2022 when an outside agency wrote to the respondent. She confirmed that the complainant’s last shift was 31st August 2022 and that she did not work after that date. As the complainant mentioned panic attacks in an email, she was concerned about her welfare. She was also aware that service users had previously seen the complainant in tears during shifts. The complainant stated on two occasions around this time that she intended to resign. Given the circumstances, there was a concern to allow the complainant work her shifts on 9th & 12th September 2022. The complainant resigned by letter on 9th September 2022 and therefore was not paid for this day. She said there was a culture within the organisation of support to staff. There had been another complaint around this time and the staff member was supported. She said there was no medical certificate submitted by the complainant during this period. The manager was cross-examined by the complainant on whether she had been fully supported by the deputy manager. The manager could not confirm or deny this although responded that she herself had tried to offer her support. She confirmed that the other staff member who made a complaint had also resigned. Closing Submission of Respondent The respondent representative submitted that the complainant had resigned. It could not be deemed a dismissal under the circumstances. It was submitted that as the complainant was not treated any differently to other staff, then it could not be a constructive dismissal. He added that the complainant had issues with authority and the respondent had repeatedly offered support which was refused. He submitted that the resignation letter did not mention detriment or adverse treatment and referred to triggers which impacted on the complainant. He concluded by stating that the complainant did not meet management or use the grievance procedure prior to resigning. |
Findings and Conclusions:
CA-00052725-001-Complaint under Terms of Employment (Information) Act 1994 The Law Notification of changes 5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— (a) the day on which the change takes effect, Finding
There is no conflict in evidence that the complainant was requested not to attend her shifts when an email was sent the day before. The complainant gave evidence that she did not want to meet with management at this time due to the earlier protected disclosure she had made. This lack of engagement is confirmed in documents put into evidence which reveal an unwillingness to discuss details or meet with management. The respondent submitted in evidence that there was a concern about the welfare of the complainant as she had complained about not working with certain staff and then left training in a distressed state. The respondent submitted that the reason she was not allowed to work those shifts was out of concern for her welfare and that she could not be paid as she resigned on 9th September 2022.
Having assessed the evidence, I am satisfied that the Act has not been breached as the complainant was notified the day before not to attend her shift.
I decide that the complaint is not well founded.
CA-00054895-001-Complaint under Unfair Dismissals Act 1994 The Law
Section 6(2) of the Unfair Dismissals Acts provides that, “…the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following; (BA) the employee having made a protected disclosure.” In this regard, the complainant must demonstrate that her complaint constitutes a protected disclosure, that this protected disclosure was communicated in accordance with the relevant legislative provision and that this disclosure resulted “wholly or mainly” to her dismissal. Although a dismissal is deemed to be an unfair dismissal, unless rebutted by the respondent, the fact of dismissal is in dispute. The complainant resigned and is claiming constructive dismissal. The onus is on the complainant to establish that she had no other option but to resign. The two well established tests for constructive dismissal are the ‘contract test’ and ‘reasonableness test.’
Finding
I am satisfied that the complainant made a protected disclosure, in accordance with the legislative provision on 6th August 2022. The respondents submit they were not aware of the protected disclosure right up to the resignation date. The main evidence of the complainant is that there was some awareness of her earlier disclosure, and that she was unsupported by management subsequently. Furthermore, she submits that not being allowed to work her two shifts entailed that she had to resign at that point.
It is common case that there is higher threshold to prove a constructive dismissal, as there is a requirement to show the contract was breached and/or that the employer acted so unreasonably that the only option was to resign. Prior to resignation, the onus is on the complainant to use the grievance procedure to put management on notice of the issues and to allow for resolution.
Contract Test When the issue arose about not working with certain staff, there was evidence that the complainant was facilitated with a change of shift. Even though the complainant did not feel fully supported, she did not raise any formal issue on this under the grievance procedure. There was still evidence of management’s attempts to seek more details and meet to discuss the issues. This opportunity to outline her workplace issues was not taken up by the complainant. When the complainant was not allowed to work two shifts, this arose under circumstances where it was reasonable for an employer to make that decision. At this stage, the employer was aware that the training day had caused her distress and panic attacks as events in her past had been triggered. There was also evidence that service users had seen her in tears. The respondent offered support and tried to meet the complainant. When there was no engagement, correspondence issued to her on how to make a complaint. For the reasons outlined above, I am satisfied that the respondent did not breach the contract or the implied contractual duty of mutual trust.
Reasonableness Test There was insufficient evidence from the complainant that her employer had acted unreasonably during her employment. Prior to resigning, there is documentary evidence of contact and support which was refused. The complainant did not accept any support, nor did she put management on notice of her specific workplace issues. Apart from not raising a grievance, she did not attend a meeting with management even though this was offered several times. There was no medical certificate submitted to inform her employer of a requirement for a period of absence. When the complainant was not allowed to work the two shifts, she did not meet with management and resigned that day. Due to the above reasons, I am satisfied the respondent did not act in an unreasonable manner. There was insufficient evidence of behaviour that would have given the complainant grounds to resign with immediate effect.
Protected Disclosure As the complainant had made a protected disclosure, I proceeded to hear evidence from the respondent, particularly as the Act places the onus on the employer to demonstrate that a dismissal was not wholly or mainly arising from a protected disclosure. A direct link between a protected disclosure and an alleged forced resignation may be discreet and difficult to prove. Having heard the evidence of witnesses, I am satisfied there was no evidence of detrimental or adverse treatment. There was no evidence the complainant was treated differently to other staff nor any indication that in the same circumstances, other staff would have been treated more favourably.
Furthermore, the respondent evidence was that they were unaware during the employment, that a protected disclosure was made. The complainant herself did not want to meet management so as not to get into a discussion on the earlier protected disclosure. Although a protected disclosure may have inherent statutory protections, there was still a requirement for the complainant to raise her personal workplace grievances. This could have been done in isolation to the earlier protected disclosure. There was a requirement on her to put management on notice and allow time for resolution of these issues.
For the reasons outlined, I decide that the complainant was not constructively dismissed.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
CA-00052725-001-Complaint under Terms of Employment (Information) Act 1994 I decide that the complaint is not well founded. CA-00054895-001-Complaint under Unfair Dismissals Act 1994 I decide that the complainant was not unfairly dismissed. |
Dated: 11-03-2024
Workplace Relations Commission Adjudication Officer: Seamus Clinton
Key Words:
Change to terms, Constructive Dismissal |