Complainant

Respondent

Parties

Patricia  Lee

Sheilds Dental Clinic

Complainant

Respondent

Anonymised Parties

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Representatives

Andrea Cleere SIPTU

Gareth Kyne Gareth Kyne HR

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-00057120-001

13/06/2023

The Complainant began her employment with the Respondent as a Dental Assistant in January 1988. She stated that she was constructively dismissed from her employment on 14 December 2022 following attempts by the Respondent to add additional duties to her role which she did not wish to carry out.

The Complainant was initially employed by Mr. Terry Farrelly as a dental assistant, prior to a transfer of undertakings in 2019 when the Respondent took over as her employer. Following the transfer, the Complainant continued to work as a dental nurse and carried out her daily duties.

On 2 November 2022, the Complainant was covering for a colleague who was taking a break when her manager Ms. Alex Slowinska advised her that she had to go upstairs to attend a meeting straight away. The Complainant, unsure of what was going on, reluctantly went upstairs to the office where the HR manager was present. The Complainant was then handed a document to read. She stated that she felt under severe pressure at the meeting and could not fully concentrate on reading the details contained within the document and just signed it. She further stated that she immediately felt uneasy about what she had signed as she had not taken in all of the detail. She was also not given a copy of the document to take away with her.

The Complainant subsequently sent an email to HR on 7 November 2022 seeking a copy of the document she had signed and received a response advising that her manager would provide a copy to her in person. On 8 November 2022, Ms. Alex Slowinska, the Complainant’s line manager made an announcement to all staff to congratulate the Complainant on her new role. The Complainant was completely perplexed and did not understand what was going on. She therefore approached Ms Slowinska and advised her that she did know that her role had changed and that she did not want the role nor did she seek it. The Complainant also advised her line manager that she felt very intimidated during the meeting of the 2 November 2022 and that she still did not have a copy of the document that was presented to her that she was instructed to read and sign. Ms. Slowinska proceeded to advise her that it was a legal document and could not now be changed and handed her the document and a pen and she was told to underline the duties that she was unable to perform. The Complainant advised that she needed to take home the document to read. She stated that she was shocked by the duties contained in the document and believed that it was more a management role. Due to the stress she was enduring at the time, the Complainant made an appointment with her GP who provided a work illness certificate.

In an attempt to remedy the situation the Complainant found herself in, she wrote an email to the HR Manager on 11 November 2022 advising that she wanted to remain in her regular role and did not want to take on the duties contained in the document that she felt forced to sign on 2 November 2022. She did not receive a response to this email and subsequently returned to work on the 13 November 2022. On 15 November 2022, as the HR manager was in the building, the Complainant called up to the office to discuss the email that she had sent to which the HR manager had not replied. During that meeting the Complainant conveyed that she did not want the new role. The HR Manager advised her that remaining in her old role was not possible because when the Respondent had bought the practice, the Complainant had been employed as a Senior Dental Nurse and she needed to carry out these duties. The HR Manager also advised her that she could only stay in her old role if she took a pay cut of at least €100 per week and she would have to sign a new contract reflecting same.

This news caused huge stress to the Complainant and she once again attended the GP who advised her to take time off work and provided her with an illness medical certificate. The Complainant engaged a solicitor who corresponded with the HR manager making representations that she be permitted to continue work in the role she had always worked in but no response was received.

As the Complainant was faced with the choice of either carrying out a role that she did not want or taking a pay cut of at least €100 per week, she believed that she had no other option but to leave the Respondent’s employment and tendered her resignation on 14 December 2022.

The Respondent stated that the Complainant had been employed as a Senior Dental Nurse since they acquired the practice from her previous employer on 21 September 2019.

On 2 November 2022, the Complainant met with the Respondent’s HR Manager as well as the Practice Manager Ms. Alex Slowinska where she was presented with a list of duties which were appropriate for her position as a Senior Dental Nurse. The Complainant was assured that she would receive both training as well as the full support from the business in the fulfilment of the additional duties that were going to be assigned to her. After some discussion, the Complainant signed the job description to confirm her agreement to undertaking the responsibilities contained therein.

The Complainant subsequently spoke to Ms Slowinska on 8 November 2022 and indicated that she did not want to accept responsibility for the tasks set out in the document that she had agreed to previously. The Complainant subsequently emailed both the HR Manager and the Practice Manager separately on 11 November retracting her agreement to fulfilling the responsibilities she had been asked to cover in the meeting on 2 November. On 21 November 2022, the Complainant began an absence from work. The Respondent subsequently received an email from the Complainant’s solicitor on 6 December 2022 further to which the HR Manager emailed the Complainant directly asking her to attend a welfare meeting where the contents of the solicitor’s letter would also be discussed. The Complainant did not respond to the Respondent’s request and resigned from her employment on 14 December 2022.

The Law

Section 1 of the Act defines what is commonly termed ‘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”

Findings

As dismissal as a fact is in dispute, it is for the Complainant to establish as a matter of probability that her employment came to an end in circumstances amounting to a dismissal within the meaning of the Act.

The case law envisages two circumstances in which a resignation may be considered a constructive dismissal which is unfair within the meaning of the Act. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment, the employee would be entitled to regard himself or herself as having been dismissed and that the dismissal was unfair. In the UK Court of Appeal Lord Denning in Western Excavating (ECC) Ltd v Sharp [1978] IRL 332held that

“an employer must be “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 line of authorities has since established this decision as defining the “contract test”.

Secondly, an additional ‘reasonableness’ test may be relied upon as either an alternative to the contract test or in combination with that test. This test asks whether the employer conducted his or her affairs in relation to the employee so unreasonably that the employee cannot fairly be expected to put up with it any longer, and, if so, he is justified in leaving. 

In this case the Complainant contends, including in evidence, that her dismissal arose from the fact that the Respondent sought to unilaterally change the terms and conditions of her contract of employment so fundamentally that she was left with no alternative but to terminate her own employment.

I should highlight in the first instance that much of the Respondent’s conduct in relation to how the Complainant was treated in the period prior to the end of her employment was concerning. Firstly, I cannot understand why she was called into a meeting on 2 November 2022, without any advance notice, especially in circumstances where the meeting had been planned well in advance, given that the HR Manager who was not based at the Complainant’s work location was present. I also find it incomprehensible that she was not given a copy of the document she signed at the end of the meeting and had to repeatedly request a copy of same before she was eventually provided with it. It was also disappointing that the Respondent’s HR Manager did not reply to two emails from the Complainant on 10 and 11 November 2022, wherein she expressed her unwillingness to take up the changed role and that it was only when the Complainant approached her in the office on 15 November that she engaged with her.

While much of the Respondent’s conduct in in relation to the Complainant was therefore questionable and I also noted that they chose not to engage with her solicitor who wrote to them on 5 December 2022, I should highlight that the HR Manager did formally write to the Complainant on 12 December 2022 inviting her to a meeting on 16 December 2022 to discuss inter alia the concerns raised by her solicitor. While I note the Complainant’s uncontradicted evidence that the HR Manager had already met with her on 15 November 2022 and informed her that she would be subject to a deduction of €100 per week if she did not agree to assume the new duties, I am of the view that the HR Manager, as evidenced by her meeting request for 16 December 2022, did not consider the matter closed and was prepared to continue engaging with the Complainant. I also believe that the Complainant’s line manager had not finalised her position on the matter as evidenced by her conversation with the Complainant on 8 November 2022. Specifically, during this discussion, the line manager informed the Complainant that there was nothing she was being asked to do that was beyond her experience and added that she would be happy to have a further meeting about her concerns on 14 November 2022.  The Complainant, despite being at work on that day, did not pursue the proposed meeting with her line manager, however.

Considering all of the foregoing points, I find that the way in which the Respondent ultimately, albeit belatedly, attempted to address the Complainant’s concerns, was reasonable, even if I also accept the suggestion made by the Complainant’s representative that they unilaterally sought to fundamentally change her terms and conditions of employment.

In assessing the reasonableness of the Complainant’s behaviour, I note that she did speak to her former manager Mr Terry Farrelly about her concerns around the proposed changes to her role, in line with the grievance procedure in her contract of employment.  This was a contract which had been provided to her pre-transfer however and she knew that Mr Farrelly was no longer her employer.  I also noted her evidence, that she had already raised her concerns directly with the Respondent on three occasions prior to the request to attend the meeting on 16 December 2022. Inexplicably however, the Complainant chose not to accept the meeting request and instead, on 14 December 2022, submitted her resignation letter wherein she failed to explain the reasons for her resignation. I find that the failure to respond to the meeting invitation of 16 December 2022 and instead resign from her employment on 14 December 2022, was unreasonable and precipitous.  

Considering all of the foregoing points, I find that the resignation of the Complainant did not amount to ‘constructive dismissal’ constituting unfair dismissal.

I find that the Complainant was not unfairly dismissed for the reasons set out above.