EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Ingrid McCrumlish UD1168/2013
against the recommendation of the Rights Commissioner in the case of:
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr M. Gilvarry
Members: Mr. D. Morrison
Ms. A. Moore
heard this appeal at Sligo on 24th November 2014, and 24th, 25th March 2015
Appellant: Ms Maura Hickey, Irish Nurses & Midwives Organisation,
Westside Business Centre, 74 Old Seamus Quirke Road, Galway
Respondent : Mr John O'Donnell, HSE, Personnel Services, Aras Slainte Chluainin,
Manorhamilton, Co. Leitrim
This case came before the Tribunal by way of the appellant (the employee) appealing against the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 (ref. r-109728-ud-11/JW).
The appellant commenced employment with the respondent in March 2005 as a staff nurse at a community hospital in Sligo town. She was assigned to the Female One ward which contained thirty six patients most of whom were wheelchair bound. Staff including the appellant were supervised and overseen by two managers on this ward. The witness initially “settled in well”. However, that feeling did not last as one of those managers - a senior nurse - began to make life difficult for her. At that time the appellant worked on a part time basis but within a year of her commencement she had secured a permanent post.
The appellant told the Tribunal that the behaviour and attitude of that senior nurse grew more hostile towards her as time passed and she had become “a nervous wreck” as a result. The appellant’s attempts at reporting this abusive treatment went unheeded. In February 2007 she went to her doctor and told her she was suffering from work related stress and was a victim of bullying by that senior nurse. Following an incident on Female One ward (which was dealt with by Occupational health) the claimant was transferred, in the spring of 2007 to another ward in the same hospital. Part of her recovery was that she did not work on the Female One ward. Up to late 2009 she had experienced no difficulties as she went about her work there. Due to an outbreak of flu there she became seriously ill. When she informed the director of nursing of her illness and absence from work the reaction was negative. According to the witness that director screamed hysterically at her and seemed not to accept the appellant condition.
The appellant referred to a number of instances in the work place in 2010 which caused her anxiety and stress. In April there was an incident involving herself, a canteen worker and the director of nursing which she found upsetting. The appellant also complained about her line manager and lodged a dignity at work complaint. As a result of ongoing stress the appellant fell into a state of numbness as she felt singled out and punished by certain colleagues. She was declared unfit for work and was away from the workplace for several weeks.
Botched and aborted meetings followed in the summer and a mediation process was put in place which the respondent did not actively participate in. The appellant did not continue with her dignity at work complaint when asked by the respondent. After another period of illness the appellant returned to work and came under the supervision of a line manager she had complained about.
On 1 December 2010 the appellant was instructed to temporarily transfer back to Female One ward by MK, the nursing manager. Despite her misgivings she felt obliged to follow that instruction. That day she was rostered to work to 16.30. While on that ward the director of nursing approached her and in a laughing and sniggering manner told her she should not be on that ward. However, she continued on her shift and she was to work there until 17.30. As a consequence of that behaviour by the respondent the appellant felt humiliated and left her workplace at 16.30 in a confused and distressed state. She phoned in sick the next day.
On 7 December the appellant wrote a short hand written note to the director of nursing giving her two week’s notice of her resignation. The witness told the Tribunal that since she did not feel safe at work and could not take any more she decided on that course of action. Upon handing in her notice the appellant did not receive any assistance or advice from the respondent. The appellant said that she signed a HSE Leaving Form, without reading it, on 13 December in order to simply get out of the director’s office.
The appellant’s clinical psychologist gave evidence of her anxiety and stress over a period of time. She told the Tribunal that in her opinion the appellant suffered from chronic stress.
A number of witnesses gave evidence on behalf of the respondent. MF (assistant director of nursing) told the Tribunal that she was on duty on the day the appellant handed in her letter of resignation. She told MF that she was resigning because of her daughter’s health. MF wasn’t surprised as she was aware that the appellant had taken unpaid leave during the summer to look after her daughter. MF gave the letter of resignation to JF (director of nursing) and told the Tribunal that it would be totally out of character for the former director to shout or be abusive to anyone.
MD (CNM1) told the Tribunal that she met the appellant after she resigned. She didn’t have many dealings with the appellant but said she had heard the news of her resignation and wished her well, the appellant said she would be able to spend more time with her daughter.
MK clinical nursing manger told the Tribunal that if the Female Wards 1 or 2 were short staffed someone from the Rehabilitation Unit would cover it, in turn. It was the appellants turn and MK told her of the need for her on one of the Female wards. She was unaware of the previous incident in 2007. The appellant did not say anything about not wanting to work in Female 1 but later complained about her. The matter went to mediation and was resolved to everybody’s satisfaction. Communication and mutual respect for each other was key to moving forward.
Much of evidence that the appellant gave the Tribunal, was explained by MK as “not having happened”. There was an issue with the appellant in the canteen and that was resolved at a meeting. MK did tell her that staff were not allowed to eat in the rest rooms, but it applied to all staff. A letter of complaint, dated April 2010, reporting that she was using bullying behaviour towards the appellant left her “gobsmacked” she sought a full investigation and also sought advice from the INMO.
The Tribunal considered the evidence and all of the submissions made. In this case the claimant terminated her own employment by letter dated the 7th of December 2010 and claims before the Tribunal that she was constructively dismissed.
Section 1 of the Unfair Dismissal Act defines constructive dismissal as:
“the termination by the employee of his/hers contract of employment with the employer whether prior notice of the termination was or was not given to the employer in the 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 burden of proof, which is a very high one, lies on the appellant. She must show that her resignation was not voluntary. The claimant in this case did not convince the Tribunal that she was constructively dismissed. However the Tribunal were concerned that no effort appears to have been made to support the claimant, either at the time of her resignation or with an exit interview. Either may have highlighted the problems that led to her resignation and avoided the unfortunate outcome. There was a stark contrast between the level of support given during grievance proceedings as opposed to the total absence of support at the time of resignation.
While the Tribunal has every sympathy with the claimant, the Tribunal upholds the Rights Commissioners recommendation and find that the appellant’s claim under the Unfair Dismissal Acts is unsuccessful.
Sealed with the Seal of the
Employment Appeals Tribunal