Complainant

Respondent

Parties

Kerri  Chaffer

SORA Healthcare Ltd t/a Irish HomeCare

Representatives

Jim Croke

Tomasz Perkowski & Patrick Troy Irish HomeCare

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-00063586-001

20/05/2024

The Complainant worked for the Respondent as a Carer for older and vulnerable adults. The Complainant had previously worked for the Respondent from the 29th of November 2019 to the 23rd of March 2021. She was reemployed with them on the 9th of July 2021.

The Respondent issued the Complainant a written warning on the 23rd of December 2023. The Complainant disputed the allegations and the basis for the written warning. The Complainant appealed this on the 26th of December 2023. She lodged a complaint to the WRC on the 20th of February 2024. A representative of the Respondent’s meet with the Complainant to discuss this on the 26th of February 2024.

On the 27th of February 2024, the Respondent was notified of issues with the Complainant. These were investigated and the Complainant was suspended on the afternoon of the 1st of March 2024. The Respondent commenced two investigations, Trust in Care and HR, in relation to the Complainant. The investigation report into the Trust in Care issue determined the investigation was “inconclusive”. Thus, it ended at that stage. The disciplinary process was invoked in relation to the HR issue. A disciplinary meeting did not occur as the Complainant resigned on the 18th of April 2024.

The Complainant claims it was a case of constructive dismissal.

The Respondent disputed this.

Whilst the Complainant was suspended there were issues with her pay. Some of these were rectified.

Opening Submission

The Complainant representative stated that for a number of months, she had heard about the care policy. This seems to be only applied to the clients. There were many conversations about it. These events have had a traumatic effect on the Complainant and the Respondent has not shown her much care.

There were malicious accusations in December. The witnesses were available to show they were false. The Complainant was told the “boat had sailed”. The solution was to write to the alleged complainants. There was no evidence to uphold the complaints. The Complainant was advised of a lengthy appeal process. The Complainant was let down by the initial process. After two months, she contacted the WRC. It is difficult to trust the Respondent.

The first complaint was not fully investigated. They never interviewed the clients. The clients were shocked.

In relation to the second and third complaint, every time they discussed it, they were told there was overwhelming evidence by Mr Perkowski. This was never conveyed in writing.

At the Tower Hotel meeting, Mr Perkowski said there was “overwhelming proof”. This was on the 14th of March 2024. The meeting on the 14th of March 2024 was the only time that it was said.

It is a shame they did not put the care into the staff as they do to the clients. It has obligations to the staff. These are false allegations. The Complainant had worked for them for five years with glowing references. The allegation was redacted.

In December 2023, the daughter of a client had made a loose allegation. She was not present and couldn’t verify it. When asked to interview the client and the next-of-kin, the Respondent refused. The Complainant received a Christmas card and was thanked by this particular client.

Another alleged complainant was interviewed. This was a woman with Alzheimer’s, no family members were present. If you ask her one thing and then an hour later asked the same question you would get a different answer.

In relation to the third complaint, the client said she was there. Nonetheless, the Complainant was found guilty. None of them double checked. They could have cleared her name.

The Complainant’s Representative responded to the Respondent’s Representative’s opening Statement. He stated that it was hard to re-engage after a failed process. The first complaint was redacted and therefore they were unsure who said what. In relation to the second and the third complaints, she felt like it was entrapment. 

Complainant’s evidence under affirmation

The Complainant then gave her evidence under affirmation. She received a QQI qualification which is equivalent to a Level 5 qualification in 2017 in the area of caring for the elderly and people with additional needs. In 2017 she began working in this area. This job required her to log in online as she arrived and left the clients. It is not very strict. Sometimes she would be delayed or forget if she was busy. Generally, the Complainant worked on her own, sometimes doubling up where there were hoists etc. 

All was fine until December 2023. If the Company were doing a check they provided a letter to the client and called in. They sent the letter in advance to the client. There was no notice to the employee. The client normally tells the employee. Generally, the next of kin will be present for the check in. For this particular client the next of kin was not always there. The husband/father would be there, usually upstairs.

The Complainant set out that she was passionate about the job and loved people. 

The Complainant received an email out of nowhere. On Monday morning she was about to start her call when she got a text to leave. The previous call had been fine. She panicked. The Complainant had been there for five years doing two calls a day. She rang her manager. There was no answer. She could not get any answers bar being told not to attend. The Complainant was very upset. She continued her work at other calls. She received an email a few days later and was very shocked.  The accusations were all redacted. She had no idea who made it. She assumed it was the daughter who would pop in once in a while. The father would be upstairs. The house was in an estate. It was a big enough house. The Complainant tried to ring her boss. Noone could not tell her anything. She was extremely anxious at this stage. 

The disciplinary meeting was online, just her, Mr Perkowski and another. The Complainant attended on her own as she had done nothing wrong. She stated that the provided notes were accurate.

The Complainant received a written warning by email. She was advised how to appeal this. She sent an email as she wanted to appeal. She wanted to clear her record. She felt it was not right that there was a written record of this.

The Complainant met Mr Troy in February. She had hoped this would resolve the matter. Up until then she had been enjoying the job and hoped to resolve the issue. The Complainant wanted to clear her name. She felt the accusations were wrong. Mr Troy and herself chatted. He had not spoken to the client. She was thinking of going to the WRC. 

Two days later she received a letter by email regarding further allegations. She was let down. 

The second investigation notes were accurate, as were the third investigation notes. She got a letter with the outcome of the investigation. She received a GP Certificate that she could not participate further. Physically she was unable to go to the disciplinary hearing. Her head space was not up to it.

The Complainant resigned on the 18th of April 2024. The Complainant never raised an internal grievance. She was not on sick leave. She was not ready to go back to work until July.  Her mental health was bad. 

The Complainant started in July with a new company. She was not receiving as many hours. Her wages were now €500 per fortnight. The Complainant was going back to college but would not be studying healthcare, instead psychotherapy in UL. She had applied for ten jobs. The Complainant had been a chef previously.

The Complainant noted that she was perfect for this job. It had changed how she was. She was seeking compensation. There had been financial difficulties as a result of her suspension. She still owed money to people.

The Complainant was then cross-examined. She accepted she had not exhaust the internal procedures as she had a lack of trust and had lost faith in the company. The Complainant believed that she had received unfair treatment in December. It had been mismanaged. She believed the company had failed her. They had put words into her mouth. Her perspective of the company had been affected by what had occurred in December 2023. The Complainant had been advised of an internal appeal. She had been provided with an internal support presence. She was urged to access them. The Complainant asked if a family member could accompany her at some of the meetings and that was granted. The grievance policy had been provided to her. When the Complainant requested postponing meetings, that had been facilitated. She had undertaken safeguarding training twice. The Complainant understood the importance of safeguarding. When requested she was given more time to consider things. 

The first pay issue had been rectified on the same day. When suspended employees of this company are only entitled to pay for their scheduled hours and the Complainant had not been aware of this.  On the 9th of April she had received her full back pay. Payroll raised the issue with Mr Troy in relation to only scheduled hours. It was then sanctioned that she would receive her average pay. She agreed and received it.

The Complainant was then deemed medically unfit to engage further.

The Complainant was asked whether she had considered asking for financial support rather than resigning. The Complainant responded that she did not know that this was available. She felt she had no choice but to resign. 

The Complainant was then re-examined by her representative. When she received the notification regarding the two investigation she felt bombarded. She was given 48 hours between meetings. There were a number of documents regarding the investigations. 

The Complainant was then cross-examined again arising from her re-examination. It was not the policy of the company to send letters in advance for spot checks. There was no policy regarding communication with clients for spot checks. Sometimes they rang to see if they could visit. If there were capacity issues, then they would contact the next of kin.

Mr Croke’s evidence under affirmation

Mr Croke then gave his evidence in chief. A call was removed from the Complainant, and this impacted on her. She was down money for ten calls per week. The Complainant was told the appeal normally takes nine to twelve months. The fact that the appeal would take nine to twelve months is ridiculous. The Responded never contacted the first client. 

In relation to the meeting in February when Mr Troy met with the Complainant, Mr Troy was made aware that was affecting her mental health. The Complainant was a good worker. The Complainant believed the allegation was malicious.

The meeting in March with Mr Perkowski bordered on bullying. There was a 10 minute break, and she was upset.

Closing Submission

In relation to compensation, the Complainant’s representative commented on the communications that had occurred. The Complainant’s representative stated that the company had failed her from day one. They had never interviewed one client. They changed their protocols. They interviewed a client with Alzheimer’s but when others said she was there, that was ignored. They have failed to provide evidence. If a complete investigation had occurred then it would have cleared her.

Opening Submission

The Respondent’s representative gave an opening statement. He set out that the Complainant resigned without engaging in the internal processes. The issues started in December 2023. He accepted the Complainant did not trust the Company after that, but he had advised her in relation to an internal appeal. She did not take this up.

The representative distinguished between the two allegations one relating to safe guarding and one relating to clocking in and clocking out. There were two processes for each. 

In relation to the investigations, there were lots of documents to consider. In relation to one of the procedures, they never got to the disciplinary hearing.

The Complainant was suspended until a full investigation could occur. In relation to the Trust in Care allegation that did not proceed beyond the investigation stage. This is not uncommon for a safeguarding issue. The representative did not consider giving further information at the investigation stage. 

There were two issues in relation to payroll.

The Complainant was under her GP’s care and provided a certificate that she was not able to participate in the disciplinary proceedings.

In respect of the resignation, the representative decided not to write to the Complainant for a few days as he hoped she would change her mind. He had considered asking her to reconsider but thought that this might provoke her. He did not call her. He did advise her to contact a counselling and support person. 

The Respondent’s Representative responded to the Complainant’s representative’s reply stating that he was not required to give all of the details at the investigation stage.

The Respondent’s Representative disputed that there was any suggestion of it taking nine to twelve months for an internal appeal. There appeared to be a mix up regarding an appeal to the WRC. That could take two years or two and a half years during COVID. She was never advised that an internal appeal could take nine to twelve months. Mr Troy went to meet the Complainant to help her understand the process and felt that she did understand it better at the end of the meeting. The best way forward was an internal appeal. He was perplexed as to why she did not engage in the internal appeal. It all could have been resolved internally. 

Respondent’s Evidence

The Respondents did not go into evidence. 

Closing Submission

The Respondent’s representative noted that the Complainant had not engaged in the internal procedures. None of the test’s for constructive dismissal were met. They met with her to address all issues. They had her best interests at heart and advised and encouraged her which was ignored.  There was no basis for her reasoning regarding December.

Law relied on by the Respondent

Section 1(b) of the Unfair Dismissal Act 1977,

“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 contract test & the reasonableness test

Dr Mary Redmond in “Dismissal Law in Ireland”

“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 employer’s grievance procedures in an effort to resolve his grievance. The duty is an imperative almost always in employee resignations. Where grievance procedures exist they should be followed”.

The Respondent relied on a number of cases including:

McGuire Haulage Ltd v Kelly (UDD2215)

Cassie Greene v Kareplan (ADJ-00049567)

Bidvest Noonan v Iosif (UDD2265)

Cope Ltd v Bell (UDD2145)

Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27; [1978] QB 761

Hair Stylist v A Hair Salon (ADJ-00026177)

Berber v Dunnes Stores [2009] ELR 61

Ciaran Nangle v Dublin City Council (ADJ-00049338)

I have carefully considered the submissions and evidence provided orally at hearing.

In cases alleging statutory constructive dismissal the employee goes into evidence as he or she bears the burden of proof as to dismissal. He or she must persuade the Workplace Relations Commission that the resignation was not voluntary.

Constructive dismissal is defined in section 1(b) of the 1977 Act 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”

As in all cases of constructive dismissal there is well established legal authority for the requirement that a complainant must exhaust all internal, workplace remedies before making a complaint.

In Conway v Ulster Bank Ltd UD474/1981 the EAT considered that the Claimant did not act reasonably in resigning without first having ‘substantially utilised the grievance procedure to attempt to remedy her complaints’. Where there are no formal procedures, advice should be taken as to the most appropriate way of presenting a complaint within the employment. At the very least an employee should communicate his or her grievance before resigning.

In the instant case the Complainant failed to utilise the employer’s grievance procedure. She confirmed in her sworn evidence that she had received the grievance procedure but had not lodge a grievance or proceeded with her appeal.

In any event there is no discernible attempt to process her complaint in a way that would be recognised for the purposes of the legal tests.

 In any event, the complaint fails utterly the other legal requirements to have exhausted internal mechanisms before a reference to the WRC.

The Supreme Court per Finnegan J in Berber v Dunnes Stores [2009] E.L.R. 61 stated

“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.”

This eloquently sets out the bar that an employee has to meet and which the complainant has failed utterly to do.

The complaint as presented under s.8 of the Unfair Dismissals Act 1977 is not well founded for the reasons set out above.

The complaint as presented under s.8 of the Unfair Dismissals Act 1977 is not well founded for the reasons set out above.

Constructive dismissal