Complainant

Respondent

Parties

Theresa  Atkinson

Deepmelco Limited

Representatives

Paul O'Donoghue

Paul O'Donoghue & Co. Solicitors

Nicola Murphy Peninsula Business Services Ireland

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-00057094-001

13/06/2023

The Complainant worked with the Respondent dental practice as a receptionist/dental nurse/ administration manager from her starting  date of 1 Aril 2002 until her resignation on 9 March 2023. Her salary on termination of employment was €640 gross; net €569 for a 31.5-hour week. The Complainant  alleges that she was forced to terminate her contract of employment without prior notice  due to the toxic atmosphere, intimidation, harassment, bullying and diminution of her rights as a long-standing employee.

The Respondent rejects the complaint and argues that the Complainant was not subject to any unreasonable behaviour as alleged and furthermore submits that at  no point during her employment with the Respondent did the Complainant raise any complaints or grievances. Had she done so, the Respondent contends,  they  would have had an opportunity to investigate and resolve any such issues.

The Complainant gave evidence that she worked as a receptionist/nurse and, in effect, as the practice manager at the Respondent’s dental practice. She expressed satisfaction with her former employer, Mr A, prior to a Transfer of Undertakings (TUPE) that took place in January 2022, when the Respondent company assumed control. However, she did acknowledge an issue regarding the hours stated in the contract of employment she received in 2018 from Mr A  but stated that she did not pursue the matter further with him. She claimed that no consultation occurred at the time of the TUPE transfer.

The Complainant described how, initially, everything was satisfactory but later observed an increasing tendency for her work to be micromanaged and for her performance to be criticised. She stated that her wages were occasionally paid late, requiring her to raise the issue with the Respondent. She underwent a surgical procedure during 2022 and was on sick leave for a period. Despite this, she said there were persistent issues and complaints raised by the Respondent, even though she maintained positive relationships with clients of the practice, from whom she consistently received favourable feedback.

Matters escalated upon her return from sick leave on 30 January 2023. She asserted that her previous employer had paid the balance of her sick pay, after accounting for social welfare payments, to bring her salary up to the full amount. In contrast, her current employer adhered only to the statutory sick pay scheme. Upon her return to work, she was issued a list of duties, which she regarded as an unreasonable imposition. She stated that the version of the list produced by the Respondent prior to the hearing did not match the one she had received, alleging that the list she was given included additional duties, notably toilet cleaning responsibilities. At this point, she went on sick leave, citing an inability to cope with the stress. She resigned, handing in her notice on 9 March 2023.

During cross-examination, she was unable to recall the specific dates when her wages had allegedly been paid late. Regarding the issue of the duty list produced by the Respondent, the Complainant stated, "I did not read the list, but I know there were toilet cleaning duties on it."

Mr Paul Melody, a non-clinical director of the Respondent company, stated that his wife was employed at the practice and that it had been purchased in January 2022 from the previous owner. He referred to the exhibited Complainant’s contract of employment, which indicated that there was never any  sick pay scheme in operation, a point further clarified in exhibited correspondence between the Complainant and Mr A.

The witness asserted that the Complainant did not raise any issues with him, nor did she use the grievance procedure. Regarding toilet cleaning duties, he explained that it was a small practice where a cleaner would attend once per week. However, in the interim, all staff, including clinical staff, participated in cleaning the toilets. He refuted the claim that the list of duties provided to the Complainant on 30 January 2023 differed from the one he exhibited, which stated as follows:

“Patient Checkout Checklist:

Check patient details are correct, update email.

Check that medical history has been updated (this should be done before the appointment).

Check consent is ticked “YES” on medical history to check PRSI.

Check PRSI.

Update status on Panara (this is important as it informs the user what to claim).

Set up recall accordingly: PRSI exam 12 months, private, and hygiene.

Claim the appropriate welfare amount.

Do VHI where applicable.

Write appropriate amounts onto cash sheet."

The witness explained that this list was created with patient safety and best professional practice in mind. He stated that on 1 February 2023, the Complainant came to work and told him, “I can’t do this any longer”, before leaving. He said he was surprised to receive her letter of resignation on 9 March 2023 and subsequently wrote to her on two occasions, as she had raised serious issues which he believed required investigation. He enclosed a copy of the grievance procedure in his correspondence and invited the Complainant to submit a formal grievance regarding her concerns. However, no response was received. On 31 March 2023, he sent the Complainant an acknowledgment of her resignation.

During cross-examination, the witness admitted that there was no reference to toilet cleaning duties in the Complainant’s contract of employment. He stated that, although the Complainant was not required to clean the toilet, she was asked to do so, as were other members of staff.

Section 1 of the Act   defines constructive dismissal as:- “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.”

The seminal case is in what is called the “contract test” in constructive dismissal cases is    Western Excavating (ECC) ltd. v. Sharpe [1978] ICR 221:  where it was stated:

 “If an 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.”

In  the case of Debbie Kearns v Silverfern Properties Ltd. (UD2428/2010)  the EAT held that “In order to succeed in a claim of constructive dismissal a claimant must show, that either their contractual terms were altered in such a way, going to the root of the contract, as to justify their claim or the conduct of the employer was so unreasonable as to justify the claim of constructive dismissal.”

The burden of proof in constructive dismissal cases is firmly on the Complainant. In   Nicola Coffey v. Connect Family Resource Centre ltd. (UD 1126/2014),  it was held by the Employment Appeals Tribunal that “the bar for constructive dismissal is very high.”

In considering the test as set down by the foregoing  authorities I have to reflect on whether a term of the  Complainant’s  contract was breached by the actions of the Respondent such as to make it reasonable for  the Complainant  to determine that the contract had been terminated. The Complainant in evidence referred to a number of matters which I need to consider as potential fundamental breaches. These are the alleged non-payment of a sick pay scheme, the overdue payment of wages on certain dates and the imposition of toilet cleaning duties. It was clear from an exhibited letter from the Complainant’s previous employer from Mr A to her, that no sick pay scheme, beyond the statutory entitlement had been in existence, despite the assertions of the Complainant. When the Complainant was asked to provide the dates when her salary was not paid on time, she could not point to any particular date. On the issue of an added duty of toilet cleaning  put on a list of duties given to her on 30 January 2023, she admitted in evidence that she had not read the list but insisted that the latter duties were on a separate page. The Complainant’s evidence was not convincing on this point; having not read the list I cannot discern how she could categorically state that there were extra duties on it. Notwithstanding this, paragraph 2 of her contract of employment stated, “Due to the changing demands of the practice, your duties may vary from time to time; and you are required to be flexible in this regard.” I am satisfied that any reasonable reading of the Patient Checkout  list as exhibited, indicates  a failsafe systematic step process that protects  the patient and the practice. I  find no evidence that the  work requirements  as described  indicated behaviour on behalf of the Respondent  so intolerable as to constitute a repudiatory breach of the contract of employment.

The Complainant spoke of feeling undermined and micromanaged. She  gave no specific evidence of such behaviour. In Conway v Ulster Bank Ltd. (UD 474/1981)  the Tribunal found that the claimant had not acted reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaints.”

In the more recent decision of General Operative v Telecommunications and Transport Infrastructure [ADJ-00026427] the WRC  affirmed the aforementioned position of both the EAT and Supreme Court regarding conduct of the parties and the necessity of the Complainant to exhaust all internal remedies prior to resignation. The Adjudicator   decided the complainant had failed to establish a case for constructive dismissal, citing (in part) the following reasons;

a. “I do not uphold the Complainants allegation of unfavourable treatment that warranted his resignation.

b. I also find that the Complainant failed to utilise and exhaust the grievance procedure, as is required, and as stated in the above cases.

c. I find that it is a requirement that an employee raises and exhausts the grievance procedure before they contemplate resignation.

d. I find that there is an onus upon the employee to ensure that their employer was aware that they were contemplating resignation and that the employer was given every opportunity to address the grievances before the resignation.

e. In this case I find that the Complainant did not make the Respondent company aware that he was contemplating resignation.”

There was uncontested evidence in the present case that the Complainant neither submitted a bullying or harassment complaint, nor raised any grievance during the course of her employment. Furthermore, she declined an invitation to formalise her concerns in the period between submitting her resignation and its acceptance by the Respondent, despite being given the opportunity to do so. The Complainant was clearly dissatisfied with the working arrangements following the change in ownership. However, the changes described could not, either individually or collectively, be deemed repudiatory breaches of contract by the Respondent.

In conclusion, and as outlined above, I find  the Complainant could not produce convincing   evidence that the incidents or requirements she described  were of such a nature or extent that the Complainant could regard them as a repudiation of the contract by the Respondent. Moreover, the Complainant's failure to use the available procedures leaves me with no reasonable basis to conclude that she was unfairly dismissed by way of constructive dismissal.

For the reasons outlined above,  I find that the Complainant was not unfairly dismissed by way of constructive dismissal.

Unfair Dismissals. Constructive Dismissal.