Complainant

Respondent

Parties

Sheila  Martins

Bon Secours Hospital  Cork

Representatives

  Self Represented

IBEC Representative

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-00060024-001

15/11/2023

The Complainant was employed as a Senior Physiotherapist and resigned her position and claimed that she was constructively dismissed due to the actions of the Respondent.

The Complainant was called to a meeting in March with her Manager and her colleague, Ms. X  who she job shared, regarding some concerns about patient treatments. There was an issue about the treatment of a patient. The patient died and while this was unconnected with the treatment of the patient by the staff involved there was an issue concerning patient care and following plans and the other Physiotherapist was very upset that the Complainant was saying things about her treatment of the patient.  The Complainant confirmed to the other employee that she did not allege the patient had died because of the other employees treatment of the patient. Arising from this incident the work situation deteriorated.

Mediation was arranged but proved unsuccessful and the Complainant  felt very insecure and afraid of being dismissed and her concerns were not take into consideration by her Manager.

After this event the Complainant was called to go to HR to do her statement. The Complainant. went home to Portugal on annual leave for 2 weeks. The Complainant started to have insomnia and palpitations and was very nervous about the situation. She started to have a frozen shoulder. She did private acupuncture sessions for that. When the Complainant come back from holidays in the beginning of April she started to be called to her Managers office 3/4 times a week. The Complainant alleged the Manager  was keeping pushing her with questions on a daily basis, wanted to see her patients notes, wanted to ask her clinical questions, telling her that the other employee could go to court and this will be very serious for the Hospital. The Complainant alleged the Manager asked her not take breaks near her colleagues because they could start asking questions and she did not want anyone to know.

The Complainant stated that from April to June she was completely lonely at her work and she would not talk to anyone  and that every colleague of hers commented how different she was. The Complainant suffered sleep deprivation and she told her Manager how overwhelmed she felt and the Complainant alleged the Manager showed no empathy at all.

The Complainant had a performance review in the middle of April and her Manager scored her really poor in social skills- The Complainant was shocked and could not say a word. The Complainant questioned her ratings but was told it is what it is. The Complainant stated she was continually questioned about clinical questions on an almost daily basis. The Complainant told her how tired she was and the Complainant felt exhausted and the Manager changed her shift.

ln the beginning of May the Complainant had a meeting with the head of the HR department and her Manager. She was asked to do her version of facts. She told HR that she never said that the patient died because of the other employee and these were only her perception not facts. The Complainant was asked to complete a statement on the issue which she did.. She felt humiliated. The Complainant stated that she was constantly called to her Managers office and she felt this very unfair. She alleged her Manager was avoiding eye contact with her outside the office and her attitude changed dramatically and stated they were very close before all these events and the Complainant felt her Manager was doing everything to make her  give up her job.

A weekend in June, the Complainant was working at the weekend and had exceptional referrals. She stated it was impossible to manage the work by herself and she texted her Manager asking her for help as this would be a normal procedure at the weekend if they need help on on calls weekends. The Manager called the Complainant back saying that she would not give her any help. She started to compare the Complainant with others that actually are not on the Respondents staff saying that everyone is very quick sorting patients unlike the Complainant.  The Complainant advised she is a senior respiratory Physiotherapist with exceptional skills in critical care and more than 25 years of experience.

On the 19th of June her Manager called her to the office and smiling she said 'l was calling you on your phone often because I have  to give you this envelope. lt is going to be a formal hearing but hopefully if you get any disciplinary action that would only stay on your file for 12 months. Now you can bring anyone you trust but it cant be me". After showing no compassion at all she asked the Complainant if could work extra hours in August and an extra weekend. The Complainant was speechless and devastated. The Complainant advised she has no family in Ireland. She was afraid how would manage her financial situation with her husband and two small children. She came home ,not eating for 24 hours and went to her GP the day after. The Complainant advised she had bum out, could not stop crying or sleeping.

The Complainant called her Manager to say that she was on sick leave for stress at work. The Complainant alleged the Manager showed no empathy at all. She went to occupational health, told them  what she was going through. They were very kind and understanding with her. They advised her to take a service, provided by the hospital for every employment and free of charge, and she went home for'15 days,

The Complainant came back to Ireland and her symptoms had not improved. She saw her GP often. Her GP advised her not to give up, to give time to get to herself back again. She attended counselling who was very empathic with the Complainant as well so she waited…but she could not come back. She stated that every time she would think about her Manager all the unfair situation would disturbed in a way that she never saw herself once. before,  She stated maybe being in a foreign country far away from her family and friends and resources even made her smaller and she went on sick leave from June until the end of her notice period.

The Complainant  had to stop her counselling because she was entitled to 6 free sessions but after that she was not able to afford anymore. Since she was om sick leave and only received an email from her Manager saying that she received her sick certificate. After every sick certificate since June her Manager never ever asked how she was  The Complainant advised she loved her job, was very committed to work and the patients were always her priority

The Complainant stated this sad and unfair situation really knocked her confidence in a way that made her think of leaving a country she used to love so much because the way she was treated at work by her Manager. Above all, she stated her complaint noted that she wants that this would never ever happen to anyone again.

The Complainant commenced employment on 9th December 2019 on a temporary contract. She was issued with a permanent contract on 1 June 2020 and on 1 May 2021, she commenced employment as a Senior Physiotherapist. She worked a half time post job sharing with Employee X.  

The Complainant commenced absence on 20th June 2023 for a four-week period. She was referred to occupational health the following day and was reviewed on three further occasions 26th July 2023, 16th August 2023 and 27th September 2023. She resigned by letter dated 12th September 2023. Prior to her resignation, she did not follow the grievance procedure or raise any issues about her employment. A copy of her letter of resignation was supplied.

The Complainant and her colleague job shared a senior physio post in the area of respiratory care which required strong communication between them and continual linking between them. On 21st December 2022 at approximately 10am X and the Complainant had an inappropriate encounter on a hospital corridor which resulted in X raising a written complaint on return from the Christmas break. An internal HR mediator, HL and the line Manager chaired a joint facilitation meeting on 18th January 2023. Subsequent individual meetings were held on January 26th and 30th. A further joint mediation on 1st February resulted in both parties committing to move forward with weekly meetings with the line Manager where both employees would bring what they wished to talk about at a weekly meeting and an agenda was drawn up. The first meeting was on Wed 22nd February 2023. It was a brief meeting, and both parties reported no issues or patients to discuss. The plan was to meet again on 6th March. The Complainant was out sick between 6th and 8th March 2023 and the meeting for 6th March was re-arranged by the line Manager for 13th March 2023. The Manager’s notes of this meeting were supplied. Immediately following this meeting, the Complainant’s colleague X raised a grievance about how the Complainant had treated her during the meeting. Almost all the March 13th meeting was spent with the Complainant going through the treatment of one of her patients who had passed away on 10th March. The Complainant arrived with two pages of notes and her tone and questioning technique was very accusatory when X tried to respond. She was very dismissive when her colleague explained her patient assessment and treatment for each day. The Complainant was not willing to take on board or accept X’s response. According to NR, the line Manager present at the meeting, after 45 minutes of the Complainant questioning and querying the treatment provided to the patient, X stated clearly to the Complainant “the physio treatment has nothing to do with the patient’s death on Friday”. There was silence then, a pause and the Complainant chose to look at her notes then and chose not to reply at all to X. The Manager then looked to finish the meeting, but the Complainant stated that she was unhappy that they didn’t get to speak about a second patient she wished to discuss. X was very upset immediately after this meeting and subsequently complained to the line Manager stating that she does not feel safe working with the Complainant in case she is accused of further patient and clinical practice allegations. She requested that the matter be resolved internally and indicated that she would make a complaint if it was not.

On 16th March, the Manager met with the Complainant to explain to her that X’s perception of the meeting of the 13th March was that the Complainant had implied that X was the cause of the patient’s death. The Complainant did not have any insight into the effect of her behaviour and the Manager explained to her that the situation is serious because X is taking offence and will not do a handover with her because she does not trust her anymore and was afraid of further accusations. The Manager requested that the Complainant apologise to X in an effort to restore relations because they operate a job-sharing post, and the roles are reliant on collaboration for patient safety. In addition, there is no other Senior Respiratory Physiotherapy position in the 3 department, and it is a critical role, so the Manager’s intention was to mediate and resolve this without X taking further action as she had indicated. The Manager explained that their professional relationship was in shreds and that as both share a caseload and are responsible for teaching a junior, communication was critical to the role. The Manager asked the Complainant if there was a second patient she wanted to discuss as per the meeting on Monday 13th March. The Complainant reported that X had said to patient 2 that her footwear wasn’t appropriate as she had a pressure sore on her heel and that she wasn’t doing enough physiotherapy, She needed to be sitting out more and mobilising more. The Complainant wasn’t happy with this, and she said that X was critical of her treatment with patient 2 in front of the patient and staff present. The Manager reviewed the patient notes and found nothing in the patient notes. She also spoke with the physio assistant concerned who confirmed that the physio had told the patient that she needed to do more but hadn’t named the Complainant and confirmed that X had not undermined the Complainant. She did confirm that X had pushed the patient to progress and had engaged with the clinical team to help the patient progress so that she would have a successful discharge home. The manger reviewed the chart for patient 1 and spoke to staff involved in his care. There was no indication that X’s treatment was negligent or contributed to the demise of the patient. The Manager relayed this to the Complainant, using the patient’s medical chart.

On 22 March 2023 another member of the HR team met with both parties separately to mediate. This was unsuccessful due to the nature of the complaint.  X then raised a formal complaint about the meeting on 24th April 2023. A copy of her complaint was supplied. The Complainant was also requested to provide her account of the meeting and did so on 14th April 2023. This account did not address X’s accusation.  The Complainant was telephoned on 8th May 2023 and asked to bring in her revised account on 10th May. A copy of this revised account was supplied.  Again, the Complainant did not deal with the essential issue which was that her colleague felt that she was blaming her for the patient’s death. A letter was received from the Complainant on 15th May referring to the incident on 13th March. In this letter she again did not demonstrate insight into the effect her approach to the meeting was having on her colleague.

On 20th April 2023, the Complainant’s performance review was held.  The Complainant met the required standard on 4 out of the 8 competencies which was consistent with her own rating. Only 1 competency was rated as poor/unacceptable which was Communicating and Influencing. This was consistent with the mediation outcome in January and the experience of the March meeting and had also been flagged with her in the previous year’s review. She was rated “requires development” in three areas, namely: - Building and maintaining relationships – the Complainant’s self-assessment was silent on her relationship with her job share partner. - Evidence based decision making - Resilience and composure As part of her standard preparation for PDPs, the line Manager reviewed 6 patient charts with the Complainant to assess the Complainant’s documentation. This is a standardised audit process which the Complainant took part in. The meeting was cordial, there were no points of disagreement and the meeting concluded positively. The Complainant did not challenge the rating during the review. The charts reviewed during this performance period and the two patients the Complainant wanted to discuss were the only charts reviewed with her at any time during this period. The Complainant did approach the Manager informally following the PDP meeting seeking to change the PDP as she believed that she had been rated poorly on a number of items and she was disappointed. The Manager acknowledged her disappointment. The Manager explained that as the form had already been completed on the software system, it could not be changed. She had an overall rating of  “requires development”. The Manager agreed to work with the Complainant on the areas of improvement and she was already working on some of the goals including the paediatric issue on evidence based decision making.

On 18th May, the Complainant met with the Head of HR, PR. The Complainant advised that she did not remember not replying to X and looking away when X said her treatment of the patient had nothing to do with the patient dying. This was the first time the Complainant stated she didn’t remember this part of the meeting. At the end of May a further plan was put in place to support both employees involved. Working hours were adjusted slightly on the 17th April so that both employees overlapped on a Wednesday morning. A meeting would be held each Wednesday morning, and the Manager would speak with each staff member briefly beforehand if there was anything to be discussed.  This was communicated to the Complainant on 1 June 2023. The first meeting scheduled for 7th June 2023 went well and there were no issues. The Manager linked in with both employees beforehand and followed up by email afterwards. The Complainant delivered the same number of in services in 2022 as her job-sharing partner and in line with the norms for seniors in the department. She trained senior colleagues in respiratory services once a month in line with the respiratory weekend roster. She was not repeatedly called to the Manager’s office, nor were her charts routinely pulled as alleged by the Complainant. The only time her charts were pulled was as part of the routine PRD process and for the two patients the Complainant wanted to discuss on March 13th. The Complainant never made her line Manager aware that she was feeling overwhelmed, she never informed her that her shoulder was giving her trouble, or her hair was falling out. Her line Manager was focussed on trying to resolve the situation in the interests of healthy working relationships and patient care. The Complainant texted her line Manager on Sunday morning 11th June 2023 at 10.14am requesting additional help for the day saying she had 15 patients and would have a definite 18 contacts. The line Manager texted her back looking for further information and also rang her to discuss. She explained that the sick cover person is not called in unless a person is sick. She questioned if all the patients were appropriate to be seen and asked about the length of time with patients. The Manager followed up and checked the number of contacts on her return to work and found that in fact she saw 11 patients with 11 contacts on the day which wouldn’t be an unreasonable workload. On Sundays, physio’s have normally seen the patient the day before which reduces the time spent with each patient. The following Wednesday 14th June, the line Manager asked the Complainant to pop into her regarding the weekend just worked but the Complainant declined. The usual Wednesday meeting passed without incident and the line Manager emailed both employees on Friday 16th June to update them on service developments, operational matters and policies.

On Friday 16th June the line Manager texted the complainant at 12.09 and 17.19 to ask her to pop into her but the Complainant did not reply. She had stayed on to meet the Complainant specially to give her the disciplinary invite letter. The line Manager rang the Complainant at 17.17 ( 2) and 17.29 (1) but couldn’t reach the Complainant. The Complainant texted her back at twenty to six to say that she missed the texts as her phone was charging. The line Manager texted her back at 17.49 that she would talk to her Monday. The Complainant called her back just before 6pm to say she had already left, and they arranged to meet Monday. On Monday 19th, the line Manager met with the Complainant to give her a copy of the disciplinary invite letter for Wednesday 21st June. She explained the process and the right to representation and explained that she could not be her representative as she was a witness to the meeting of March 13th. She explained sensitively and professionally that the most likely outcome was a note to file which would stay there for 6 months, and she reassured her that she would not lose her job. On the 21st June, the Complainant called in sick and her Manager emailed her back on 23rd June thanking her for her medical certificate, reminded her to claim social welfare so she would not be down pay and expressed her good wishes that she hopes she feels better soon. She was seen by occupational health the following day and signed off for four weeks, noting that she was due to return home to Portugal for a three-week holiday. She was seen again on 26th July and again found unfit to engage. Dr Gallagher examined her again on 16th August and reported an improvement and indicated that she would be likely to be fit to resume work in approximately four weeks time. A further review took place on 27th September where she informed the company doctor that she had decided to resign her position rather than return to work.

Section 1(b) of the Unfair Dismissals Acts, 1977 – 2015 (as amended) defines dismissal in relation to an employee as, inter alia: “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 light of this definition, and established principles adopted by the Tribunal and the Courts, there exists a burden on the employee to demonstrate that: a) The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on the part of the employer, or b) The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign. It is only when either of the above criteria have been met that the employee is entitled to terminate the contract of employment. It is the Respondent’s position that neither criterion has been met.

Contractual test: The Respondent at all times operated within the terms of the contract of employment between the parties. No contractual violation occurred. The Respondent would draw on the explanation of the contractual test for constructive dismissal as set out in Conway v Ulster Bank, UD474/1981 to confirm this position, in that the Respondent did not violate any term of the contract or organisation policies, express or otherwise. The Respondent’s actions were in no manner “a repudiation of the contract of employment” and, did not demonstrate “that the Respondent no longer intended to be  bound by the contract”. No change occurred in the contract to make it “so radically different from what was before”. The Respondent fulfilled its contractual obligations, implied and otherwise, at all times. In light of this, it was the Respondent’s position that the termination of employment fails on a contractual test to be a constructive dismissal.

Reasonableness test:. In respect to reasonableness, it was the Respondent’s position that there exist two interwoven factors to be considered: (a) did the employer act unreasonably so as to render the relationship intolerable, and (b) did the employee act reasonably in resigning, particularly in respect of internal grievance procedures. This is in accordance with established approaches as expressed by the Tribunal, for example in McCormack v Dunnes Stores, UD 1421/2008,  where the Tribunal stated: “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.”

Reasonableness: the conduct of the employer It is the Respondent’s position that it acted reasonably and fairly at all times, in accordance with its policies, best practice, and appropriate conduct. The Respondent:;

Attempted to mediate between two employees but the Complainant was unwilling to apologise for her part in the incident.

Afforded the Complainant three opportunities to put her account of the disputed meeting on the record with a view to resolving the issue raised by her job share partner.

Acted in accordance with its procedure and natural justice in pursuing the complaint and issues raised against the Complainant.

Provided clear feedback and put measures in place to ensure both parties could continue to job share going forward whilst attempting to improve patient communication.

At all material times the Respondent acted in a respectful, transparent and reasonable manner in all dealings with the Complainant during her history of employment with the Respondent. On all occasions the principles of natural justice were adhered to and all policies were followed pursuant to internal guidelines and statute. Respect was always shown to the Complainant during her paid sick leave with the Complainant examined regularly by occupational health.

The Respondent refuted the Complainant statement that she had to leave her job due to the conduct of her employer or others at work. The Respondent has a comprehensive grievance procedure in place, through which all grievances are fully and fairly processed, in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000).  The Complainant’s contract of employment also provides guidance in relation to the Grievance Procedure – “Disagreement or general dissatisfaction may occur among staff or between the organisation and its employees. Full recognition is given to the significant of personal grievances and it is our policy that all grievances will be dealt with without undue delay and resolved at the earliest possible stage. If you have a grievance that you consider to be genuine in respect of any aspect of your employment, you have a right to discuss with your Line Manager or other management as circumstances warrant. If for any reason the issue is not dealt with effectively and you are not satisfied with the result, you are encouraged to utilize the formal procedure within seven working days of the outcome at informal stage. The formal procedure should only be undertaken when other avenues of dialogue have failed to reach a mutually acceptable outcome. The organization’s grievance policy is available: HR-PP-29” The Complainant was afforded the opportunity to raise a grievance and elected not to do so. The HR Manager met with her on 11th May 2023 and again on 18th May and at no stage had she flagged any grievance issue with her. Her line Manager met with her on 19th June and no grievance was raised at that stage either. The Complainant met with the company doctor on 4 occasions and never flagged any grievance. In her letter of resignation, the Complainant thanked the Senior HR BP and extended her best wishes. Her letter of resignation thanked her Manager for the opportunity to work in such a lovely department. She explained that she had genuinely enjoyed her time working in the hospital but that in the best interests of her career, she felt that now is the right time to move to a new chapter. As such, the Complainant did not act reasonably in resigning her employment as she had not previously “substantially utilised the grievance procedure to attempt to remedy her complaints” (Conway v Ulster Bank). The obligation to exhaust internal grievance procedures can exist even in situations whereby there exists a purported breach of contract. In 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”. The Complainant initiated the company’s internal grievance procedures but did not exhaust them and resigned without lodging a final appeal. The Tribunal found: “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 stated: “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 Tribunal thus found in that case that the Complainant was not constructively dismissed. Just as it is unacceptable in the case of a non-constructive dismissal for an employer to dismiss without recourse to fair and comprehensive procedures, so to it is insufficient for an employee to claim herself to have been constructively dismissed without utilising and exhausting grievance procedures. It is the Respondent’s position that the Complainant failed to establish the burden of proof that her actions were reasonable. As in Travers v MBNA, it is the Respondent’s position that the Complainant’s failure to utilise/exhaust internal grievance procedures is detrimental to her claim. Finally, the Respondent wished to reference Fitzsimons v Mount Carmel Hospital, UD855/2007. In that case, in the Complainant’s letter of resignation a complaint was raised against the Complainant’s Manager. The Respondent conducted a “full investigation” and extended an invitation to return to work. The respondent further “was open to meeting requests and provisions which may reasonably attach to the said return to work” and an offer was made to “bring in a mediator to facilitate a harmonious return to the workplace if that was possible”. The Complainant rejected the offer of return on the grounds that her relationship with her Manager had deteriorated so much. The Tribunal stated: “It is regrettable that this final step [of acceptance of the return to work offer] was not taken and the Tribunal finds it was unreasonable for the Applicant not to have seen this process through. The Employment Appeals Tribunal’s primary function is to ensure that internal workplace procedures are fairly applied to individual employees and there is an onus on employees to engage fully in these procedures where a clear effort is being made to overcome past difficulties.” In this case, the Complainant did not see her own process through, and had been given ample time to do so. The Complainant was unhappy with her end of year review and the feedback regarding her behaviour. She was also unhappy about the March 13th meeting but did not take steps to rectify this when afforded the opportunity. The Complainant does not reach the burden of proof to establish constructive dismissal. Her resignation was her own personal choice and not based on any act or omission of her Employer. By virtue of the above, the Respondent submitted that the Complainant’s resignation does not fulfil the test of reasonableness and thus cannot be determined to be a constructive dismissal.

The Complainant moved to New Zealand in January 2024 and is not available to work in Ireland. In conclusion, it is the Respondent’s position that it in no way repudiated the contract of employment but rather operated the employment relationship at all times within the parameters of that contractual relationship. Furthermore, it was the Respondent’s position that its interactions with the Complainant were at all times reasonable, and that, conversely, the Complainant’s action in failing to utilise and exhaust the internal grievance procedures amounted to unreasonableness on her part. In light of that, it was the Respondent’s position that the Complainant was not dismissed, constructively or otherwise, from her employment. The Respondent requested the Adjudication Officer to reject the Complainant’s claim.

The applicable law

Unfair Dismissals Act

Section 1 ‘constructive dismissal’ 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”

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. There was no dispute that the Complainant resigned by letter dated September 12th 2023  and gave 8 weeks’ notice..

Section 1 of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where conduct of the employer amounts to a repudiatory breach of the contract of employment an employee could be entitled to regard herself as having been dismissed. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332it was held by the Employment Appeals Tribunal that, to meet this test, “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”

Alternatively, a line of authorities has established a reasonableness test which may be relied upon as either an alternative to the contract test or in combination with that test to substantiate a complaint of unfair dismissal. 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.

Similarly, a line of authorities has established that an employee who seeks to rely upon the Act must demonstrate that she also behaved reasonably in concluding that she is entitled to terminate her employment. In particular, the authorities make clear that an employee must seek to utilise the available grievance procedures in the employment before terminating her employment or else demonstrate why such a course of action would not have been reasonable or practicable. In Beatty v Bayside Supermarkets UD 142/1987for example, the Employment Appeals Tribunal held:-“The Tribunal considers 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”.

The Complainant has set out a narrative in her evidence to the Hearing describing alleged statements, behaviours and actions of a number of her colleagues to support her contention that she was left with no alternative but to resign her position. These assertions was severely denied by the Respondent. There was significant information to support a breakdown in the interpersonal and professional relationship with Ms. X, who job shared with the Complainant and the events which triggered this contributed substantially to the Complainants discomfort at work. The Complainant gave evidence of her experience, working through Covid, providing training for other staff, working with Nurses and respiratory groups to keep up todate and how she often got praise from her Manager for her performance. She advised her colleague did not recognise her as a peer, that thy had different ways/techniques of doing things (she did not allege either was incorrect), advised her colleague selected patients for herself and was working there for 20 years and was trying to control the Complainant and undermine her. She outlined a discussion with her colleague on December 21stt that she felt became nasty and personal and the Complainant was told afterwards that her colleague had complained the Complainant to HR. The Complainant alleged her Manager was a bully and was taking things in favour of her colleague. The Manager met the two staff and the Complainant stated that Ms. X stated if there was another incident she would seek disciplinary action.  The Complainant did not want any more to do with Ms X after that. The Complainant outlined some examples of where the two staff disagreed on treatment methods applied. The Complainants Manager asked in a meeting that the Complainant apologise to Ms. X and the Complainant alleged this was taking sides. The Complainant advised she never saw Ms. X’s complaint until she received the Respondent submission. The Complainant outlined how the working relationship changed drastically and she was not coping well or sleeping. She advised she had a lovely relationship with her Manager before this but it all changed. The Complainant disputed her performance review and suggested her Manager was not impartial and she no longer trusted her. The Complainant was asked by the Respondent Representative why she did not make a complaint against her Manager and she stated that if she felt more secure she should have. The Complainant accepted she had the option to raise a grievance but did not. The Complainant was asked what specific things the Manager did to justify her leaving and the Complainant stated she was asked to pop in the office, that the Manager was pulling charts at random and the Complainant thought Ms. X was giving the Manager the charts (there was no evidence to support this), that the PRD was very unfair and the Manager was trying to pick on little things to upset her. The Complainant confirmed she challenged the Manager on this but stated she was so overwhelmed by things and could not cope anymore. The Complainant accepted that the mediation process was to try resolve issues and she had never met the Head of HR before. The Complainant advised she would not want to work with the Manager again. The Complainant was asked did she see herself as better than Ms X and she replied, no just different. The Complainant accepted she said something to upset Ms X in the corridor in December. The Complainant stated she started the process for her certification in New Zealand in June 2023 and she got recognition in October 2023. The Complainant was asked what the Manager did to her to justify leaving the company and the Complainant stated she took sides, changed her approach to her and the relationship and trust they had changed a lot.

Ms.Nuala Reynolds, the Complainants Manager, gave evidence to the Hearing. She advised she was in the Bon Secours since 2006 and was the Physiotherapy Manager.  She was asked by the Respondent Representative was the PDR a fair reflection of the Complainants performance/capabilities and she said yes. She advised the Employee completes the form first and then they sit together to discuss. She confirmed she and the Complainant had got on well and the Complainant was a good worker. She advised in the review she and the Complainant had scored the same on four competencies but the Complainant had not acknowledges any relationship issues with her colleague. She advised that given the information available she did not get that omission. She advised the Complainant and Ms. X had worked well together but she received a complaint from Ms. X about the Complainant. She initiated a mediation process and they had a few good meetings together. She advised she was sorry to see the Complainant resign. She advised the patient that passed away had nothing to do with her Physiotherapy treatment. The Complainant asked Ms. Reynolds about notes on her review that mentioned medical decisions and she advised these were not negative comments. The Complainant asked Ms. Reynolds to confirm that after the issue with Ms. X she called the Complainant to her office more often and Ms. Reynolds replied she dealt with the situation in a professional way.

The Adjudicator notes the existence of comprehensive grievance procedures in the employment and accepts the Complainant was aware that such procedures existed as it was contained in her contract of employment which she signed. . The Adjudicator is satisfied that the Complainant had the means and opportunity to be aware of the existence and detail of the grievance procedure in place in the employment. As the Respondent pointed out in their submission, it is well established in law that in a claim by a Complainant, which is assessed under the Reasonableness Test , it is usually necessary for the Complainant to display that they have exhausted all internal procedures for dealing with complaints before resigning from their employment. As the Employment Appeals Tribunal put it in Travers v MBNA Limited (UD720/2006)‘it is incumbent for the Employee to utilise all internal remedies’, something that was set out clearly in the earlier case of Conway v. Ulster Bank (UD474/1981)

In this case the Complainant resigned her position by letter dated September 12th 2023.. She resigned with 8 weeks notice and made the following comments in her resignation letter “I would like to thank you for the opportunity to work in the Bon Secours Hospital Cork in such a lovely department.  I genuinely enjoyed my time working in the Bon Secours and in the best interests of my career now is the right time to move on to a new chapter”. The Complainant stated at the Hearing that this letter was written so as not to fall out with the staff at the hospital as she would need a reference. The Complainant commenced the process for certification in New Zealand in June 2023 and received her certification for New Zealand in October and took up employment in New Zealand in February 2024. This confirms some element of preplanning to move to New Zealand prior to submitting her resignation. Her letter of resignation discloses no allegation of bad behaviour by the Respondent. Neither had the Complainant raised any such contention through the available grievance procedures prior to her resignation.

Having regard to the written and oral submissions of the Complainant and on behalf of the Respondent, the Adjudicator concludes that the Complainant has not established that she was unfairly constructively dismissed. She based her complaint on three main grounds, an interpersonal dispute with a colleague, how she felt treated by her Manager and a disputed performance review.  She has failed to establish that any behaviour of the Respondent could reasonably be interpreted in these situations as having entitled the Complainant to terminate her employment in a manner which could be found to amount to constructive dismissal. The Respondent attempted to try and resolve the interpersonal difficulties with Ms. X though mediation and weekly meeting intervention but this was not successful, which was not the fault of the Respondent. The Respondent acted reasonably throughout what was a difficult time for all concerned but was primarily driven by an interpersonal dispute between two staff. The Complainant did not rely on any breach of a contractual term. The Complainants letter of resignation gives a totally different picture of her working situation than what she set out in her submission and evidence and this conflict of information does not assist the Complainants case. The Complainant also failed to initiate any formal grievance throughout the time she alleged she felt so uncomfortable.

I find that the Complainant was not unfairly dismissed.

Constructive Dismissal