Complainant

Respondent

Parties

Eileen  Leonard

University College Cork

Representatives

  Self-Represented

 RDJ LLP

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-00054736-001

27/01/2023

The Complainant presented her evidence on Oath.

The Respondent’s witnesses, Ms. Siobhan Lynch and Ms. Niamh Healy swore Affirmations at the outset of the hearing.

It was the Complainant case that she was constructively dismissed from her employment with the Respondent. The Respondent denied this complaint.

The Respondent filed written submissions and documentation in advance of hearing. Both parties availed of the opportunity to cross examine.

The Complainant provided evidence of her position as a Senior Registered Nurse with the Respondent from 4 September 2006. On 2 August 2022, she resigned via letter, which was accepted by the Respondent. The Complainant expressed her love for her job and took her role within the Respondent’s hospital very seriously.

It was the Complainant’s evidence  that she had no option but to raise a grievance in February 2022 regarding the manner in which she was treated by her colleagues in March 2021, May 2021, and during the Summer of 2021. A grievance investigation took place under Stage 1 of the policy. Her grievances were acknowledged, and mediation was suggested as an outcome, along with an apology from her colleagues and dignity and respect training.

In May 2022, she received an apology from her colleagues but felt it was not sufficient. The Complainant herself had to follow up with HR for the apology. In relation to mediation, it was her evidence  that she was subsequently told that it was too late for mediation by the mediator, and this was no longer an option on 2 July 2022. The Complainant stated that she never heard whether the dignity and respect training took place.

The Complainant gave evidence of another incident around Christmas 2021, involving a face mask, which she raised with her line manager, Ms. Lynch, whom she described as "helpful." The Complainant also raised issues of her lack of patient contact, which was a change to her role. She argued that since she had already raised a grievance, she saw no need to raise another about subsequent issues.

The Complainant disputed that she sought compensation from the Respondent but was contacted by HR, who offered €6,000 in compensation in exchange for her signature on "a document" on 27 July 2022. She testified that she had no option but to resign as every option had been exhausted.

Mitigation of Loss:

It was the Complainant’s evidence that she obtained employment at a higher salary. It was suggested to her that she had no financial loss, to which she responded that she was seeking compensation for the mistreatment by her colleagues.

Ms. Healy, HR Business Partner, provided evidence of the Stage 1 Grievance initiated by the Complainant in February 2021, which was limited to the incident on 31 March 2021. Ms. Healy stated that apologies were issued, and bespoke training took place for the individuals involved. There was no Stage 2 appeal. Mediation was arranged and consented to by the parties.

On 31 May 2022, Ms. Healy received an email from the Complainant "out of the blue," seeking redundancy. She mentioned calling the Complainant and was clear from the outset that redundancy was not on the table. Subsequent emails to Ms. Lynch sought advice from Ms. Healy, reiterating that it was not a redundancy situation. Approval was sought for the payment of the 3 months' notice in lieu of the Complainant, but it was not formally progressed.

In her correspondence of 28 July 2022 to the Complainant, Ms. Healy enclosed the grievance procedure where the Complainant had raised her unhappiness with the outcome of the 2021 grievance investigation. No appeal was received by Ms. Healy.

Regarding mediation, Ms. Healy testified that she personally followed up with the mediator after the Complainant told her the option was no longer available for her. The mediator confirmed in writing that this was not the case. She did not believe there was a follow-up from the Complainant.

Under cross-examination, Ms. Healy denied calling the Complainant to offer her redundancy. She accepted that she said she would explore the payment of 3 months in lieu of notice. Ms. Healy stated that it was always her first recommendation to engage with mediation.

Ms. Lynch, the Manager of the Dental Hospital, gave evidence on behalf of the Respondent. She spoke highly of the Complainant, describing her as an excellent nurse. Ms. Lynch outlined that in June 2021, following notification from the Complainant's husband, she cancelled her meetings and met with the Complainant, offering her the relevant policies and support around her grievance. The Complainant was referred to Occupational Health.

Ms. Lynch stated that she operated an open-door policy with the Complainant and could see the impact of her colleagues' behaviour on her. She kept in touch with the Complainant regularly throughout 2021 to 2022. Ms. Lynch gave evidence of the change to the walk-in clinic following the Covid-19 pandemic and the need to relocate nurses.

In June 2022, the Complainant approached Ms. Lynch about a mask incident with a colleague. Ms. Lynch specifically asked if the Complainant wanted her to talk to her colleague, and she refused this offer. No grievance was raised at that stage. Ms. Lynch noted that the Complainant found work intolerable and was unhappy with the apology offered following her Stage 1 grievance. Ms. Lynch followed up with HR regarding the suggestion that mediation was no longer available and confirmed with the Complainant that this was not the case. She also followed up on the status of the dignity at work training.

Redundancy was not explored as an option, but other options were considered following the Complainant’s request. Despite the Respondent’s best efforts, it was felt that it was not possible to retain the Complainant.

Upon cross-examination, Ms. Lynch was asked about two meetings that the Complainant had with her around June 2022. Upon inquiry, Ms. Lynch was asked about the frequency of her meetings with the Complainant, to which she replied it was approximately 2-3 times a month. It was submitted that the Respondent’s case was that the Complainant failed to exhaust all the internal procedures available to her before alleging constructive dismissal, which was denied.

The Respondent relied on the test set out in Berber v. Dunnes Stores [2009] 20 ELR 61 and caselaw; McGreevy v. Ulster Bank UD962/2009, Brothers of Charity v Denise Shaw Kelly UDD1928, Ryan, Cannon and Kirk Accounting Services Limited –v- Violeta Kneite (UDD1910)  [2019] 2 JIEC 2501, Gary Keogh v. JTM Jump Starters Limited (U.D. 1090/2008) and in particular, A Brewer v A Brewing Company – ADJ000015238 which it is submit it very similar to this case.

The Complainant has initiated this complaint for constructive dismissal under the Unfair Dismissals Act 1977 -2015

Dismissal is defined in Section 1 of the Act as:

“dismissal,” in relation to an employee, means—

(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, or”

Burden of Proof

A constructive dismissal complaint places the burden of proof on the Complainant to establish that because of the Respondent’s conduct the Complainant had no option but to terminate her employment. She also must demonstrate that she was justified in her decision, and it was reasonable for them to resign.

In UD 1146/2011 the Employment Appeals Tribunal (EAT) held “in such cases a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.

Internal Procedures

It is also well established that the Complainant must exhaust the Company’s internal grievance procedures in an effort to resolve the grievance prior to resigning and initiating a claim for unfair dismissal. The EAT in McCormack v Dunnes Stores UD 1421/2008held:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.

In Harrold v St Michael’s House (UD1123/2004) the EAT described constructive dismissal in the following terms:

“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 employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

The EAT further emphasised the need to seek to resolved matters internally as in the first instance in M Reid v Oracle EMEA Ltd UD1350/2014:

“It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”

Reasonableness

The question which I must decide in the present case is whether, because of the conduct of the Respondent, it was reasonable for the Complainant to terminate her contract of employment.

The Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61, held 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 Labour Court in Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] held that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held Travers v MBNA Ireland Ltd [UD720/2006]: “We find 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…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”.

The WRC decision relied upon the Respondent ofA Brewer v A Brewing Company, ADJ-00015238:-

“The Respondent disputes the claim of constructive dismissal. It said that it was unaware of the Complainant’s grievances, they were in constant communication about his role and work arrangement and that it was doing its best with the difficult position that it was in and it attempted to look at various options that were available to assist the Complainant.”

There is no dispute that the Complainant did invoke the Respondent’s grievance procedure at Stage 1. An investigation took place, resulting in the upholding of the Complainant’s grievances. Mediation and training were recommended, both sensible options. It is noted that the training did not take place immediately, which can be excused given the circumstances of the Covid-19 pandemic. To be fair to the Complainant, she followed up on this and kept the process in mind.

As regards the complaint relating to face mask and the lack of patient contact, it is wholly insufficient to discharge the burden of proof by simply stating that a separate grievance had already being raised as per the Complainant’s evidence. The Respondent must be given a fair opportunity to investigate each grievance individually. It is accepted that Ms Lynch offered the relevant supports to the Complainant at the time.

On 31 May 2022, the Complainant emailed HR seeking to apply for a redundancy package. When this option was not available, she requested that the offer of payment of her 3 months in lieu of notice be expedited. On 2 August 2022, she resigned from her position in a letter from her solicitor. At the request of the Respondent, she was asked to resign in accordance with its resignation policy, acknowledged on 2 September 2022.

It is clear that the Complainant was considering all her options before terminating her employment, assessing which would be most favourable. While such inquiries may not be detrimental to a complaint for constructive dismissal, they indicate that from 31 May 2022 to 2 August 2022, the Complainant had at the forefront of her mind, the desire to leave her job and was seeking an optimum exit. It appears that only after the redundancy option and payment in lieu of notice did not materialize did she then seek to claim constructive dismissal.

The reality of this case is that the Complainant raised a grievance, which was addressed by the Respondent under the correct procedures. The Respondent acknowledged the Complainant’s grievances. Following the outcome of the grievance, HR diligently engaged an experienced third-party mediator. Unfortunately, due to a misunderstanding on the part of the Complainant, she chose not to participate in mediation. When she raised her misunderstanding to Ms. Lynch, who in turn helpfully followed up with HR and corrected the record that mediation was still available to the Complainant. Despite this, mediation or alternative steps under the grievance procedures were not availed of by the Complainant, and no good cause was shown by the Complainant for not taking these steps.

Ms Lynch can only be described as supportive and kind manager to the Complainant, which was evident from her open-door policy, just like in A Brewer v A Brewing Company, ADJ-00015238. It must also be noted from the Respondent’s evidence that the Complainant was a very valued member of staff with a very high level of patient care. For those reasons, it is unfortunate that the Complainant did not allow her employer to address her concerns, which were acknowledged as legitimate, within in the remit of the policies and procedures in place. It is in those circumstances  it cannot be fairly and reasonably concluded  that the Complainant had no option but to reign from her employer because of the conduct of her employer.

For these reasons, I find the Complainant was not unfairly dismissed.

I find the Complainant was not unfairly dismissed.

Constructive Dismissal- Grievance – Failure to exhaust internal grievance – Resignation