EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD817/2014
CLAIM(S) OF:
Gwen O'Grady -claimant
against
Brookhaven Nursing Home Limited -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr. J. Hennessy
Mr. F. Dorgan
heard this claim at Kilkenny on 30th March 2015 and 22nd June 2015 and 23rd June 2015
Representation:
Claimant: Ms. Yvonne Blanchfield, Owen O'Mahony & Co. Solicitors, 5 John's Bridge, Kilkenny
Respondent: Mr. Des Kavanagh, Burton Hall, Palatine, Co. Carlow
This is a claim for constructive dismissal. The claimant maintained that she was bullied by the Director of Care, reducing her to tears and feelings of inadequacy.
Summary of evidence:
This was a claim for constructive dismissal.
In February 2010 the claimant commenced employment with the respondent, providing a hairdressing service for the residents in its nursing home, two days per week. In March 2010 the claimant began working as a care assistant within the nursing home and continued with her hairdressing duties.
It was the claimant’s evidence that some weeks into her work as a junior care assistant the Director of Care (DC) told her to “tone it down” that her “personality was too bubbly” and attributed this to her “Dublin wit.” This was denied by DC.
The General Manager’s evidence was that the respondent has a very strong culture of dignity and respect for the residents and staff. They endeavour to encourage, coach and improve staff. The management team, consisting of DC, ADC and himself, have regular meetings. They try to resolve problems informally. Due to the outstanding staff working in the nursing home problems are rare. The four categories of staff elect a representative and there are about four workplace meetings per year. Over three days in September 2011, DC spoke to the care staff about building good team work, fostering good relations with all workers and staff were told not to speak about colleagues unless they were present and included in the conversation. At these talks the care workers were reminded that the respondent had a strict anti-bullying policy in place and that no form of bullying would be tolerated.
It was the claimant’s evidence that on one occasion in the summer of 2010 she was expected to work a night shift as a care assistant followed by a day of hairdressing. The claimant raised the issue and DC told her she would have to work one or the other. Ultimately the claimant worked both shifts but during cross-examination she accepted that this situation had arisen on only one occasion.. It was the evidence of DC that she made an error on that one occasion when preparing the roster. The claimant was provided with eight days notice of the roster and it was open to her to raise the issue at that stage or swap a shift with a colleague. In the normal course the claimant’s shifts were allocated to days that facilitated her hairdressing work. Ultimately, her hairdressing was reduced to one day a week.
The respondent’s position that the claimant was a very good care assistant but she had a strong personality and the manner of her interaction with other members of staff kept cropping up. The requirement to delegate work in a pleasant manner was discussed with her. Nurse N, who had been the claimant’s line manager up to the time of his retirement described her as a very enthusiastic worker with great potential and an eagerness to learn but some members of staff found her to be very bossy. While having every confidence in her ability to carry out the role he had some concerns regarding her interaction with staff. In her annual appraisal meeting conducted by Nurse N and DC on 30 March 2012, the claimant was told her personality was “very strong” and that some staff members felt “a bit intimidated” by her; she was giving the impression to staff, especially the junior nurses, that she knew better than they did how to perform some tasks. She felt as if everything she was doing was wrong. She left this meeting feeling depleted. She confirmed to the Tribunal that she signed the appraisal for 2012 but was neither given the opportunity to read it nor provided with a copy of it
In October 2012 the claimant was successful in her application for promotion to the position of senior care worker. At this time DC and ADC emphasised to her to be careful in how she speaks and gives directions to staff and to communicate with them in a pleasant manner. In a follow up meeting in November 2012 senior care workers were reminded about maintaining a good relationship with other staff members. At both meetings it was made clear that there should be no negative comments made about colleagues.
ADC’s evidence was that she had a positive relationship with the claimant and did not find her intimidating but some nurses did, especially the more junior ones; the claimant would question what they were doing and this undermined their confidence. The claimant had never complained to her that she was being bullied by DC. The claimant’s evidence was that after a few weeks in the senior role she was addressed about her mannerisms and informed that she was on a six-month trial.
In late October 2013, a care worker (CW) reported to ADC that she was upset about comments made by the claimant in the staff room on Monday, 21 October. ADC asked her to put her complaint in writing as she would have a chat with the claimant about it. A senior care worker (SCW) also provided a written statement about what had been said in the staff room on 21 October; however she had not volunteered her statement.
The two complaints were to the effect that the claimant had been complaining that she had been phoned on Sunday morning when she was not on call and had been critical of management and two colleagues who were not present. On receiving the complaints DC decided to call the claimant to her office to get her version of what had been said in the staff room on the morning of 21 October. DC was conscious that the claimant had health issues as well as suffering from non-work related stress and wanted to deal with the complaints in an informal manner.
On Friday 25 October 2013, the claimant was called to the office. DC and ADC were present there. It was the claimant’s evidence that she was informed that the meeting was in relation to a serious matter which had taken place the previous Monday, 21 October and for which she would receive a written warning. The claimant’s account of this meeting was that DC subjected her to an “indescribable attack”; that DC shouted at her that she was criticising staff members and management of the nursing home in the staff room and giving out about getting a call to come to work on her day off. The claimant told DC that she did not know what she was talking about, that she had not started the conversation in the staff room, that the conversation about receiving calls to come into work was going on when she entered the staff room. The claimant became upset and was reduced to tears. As she was leaving the premises she told the receptionist that she felt unwell, was going home and not coming back; she could not stand “being spoken to like this anymore”. At the door on her way out she told him she could not work there anymore. The receptionist, whose work station is located close to the office, gave evidence that she did not hear shouting in the office during the course of this meeting and that the claimant looked as though she had been crying when she came out of the office.
Both DC and ADC refuted the claimant’s account of DC’s behaviour at the meeting. At the outset of the meeting claimant was told that two colleagues had provided written statements about what she had said about other staff in their absence in the staff room the previous Monday. The contents of the complaints were put to the claimant. She became hysterical and denied the complaints made against her. DC expected the claimant to outline that she was having a bad day that Monday and the complaints would have then been shredded. During cross-examination DC stated that although the respondent had asked the complainants to put their complaints in writing on this occasion, she still intended to manage the matter informally with the claimant. However, as the claimant denied the contents of the complaints DC informed her that she needed to consult with human resources on the matter. She was surprised to later realise the claimant had left the premises immediately afterwards. DC left a message on the claimant’s mobile phone that afternoon but her call was not returned.
The claimant attended her doctor following the meeting and was prescribed medication and rest. Thereafter, she was absent, initially on sick leave and then on annual leave. On 6 November, DC wrote to the claimant telling her it was unprofessional to leave without informing the nurse in charge and leaving resident’s waiting outside the hair salon. The claimant invoked the grievance procedure on 14 November 2013 and in deference to her wish not to have management deal with it DC engaged HRC, the respondent’s external HR consultant (and representative at this hearing) to hear her grievance. However, the claimant objected to HRC in December 2013 on grounds that he was connected to the respondent. The claimant’s evidence was that HRC was DC’s brother-in-law.
The claimant described feeling worse about the situation as time passed. She reflected that during the course of her employment she had been periodically reduced to tears by DC and feared her. The claimant felt she had no option but to leave the employment and tendered her resignation by letter dated 29 January 2014. Her position was that she loved her job and her work was good but the only way she could return to work was if DC left or gave up her position. She could not possibly return to the job because staff members were making up things about her.
Determination:
The evidence of four of the claimant’s superiors was that she was a competent and very good care worker. Each of these witnesses also gave evidence of her need to moderate the manner in which she interacted with and spoke to other members of staff. The Tribunal finds that these regular reminders to the claimant did not constitute bullying. On the contrary, the respondent’s and DC’s regard for the claimant is clear from the fact that she was promoted to the position of senior care worker in October 2012. It was reasonable that at and around this time there was emphasis on the need to interact with staff and delegate work in a pleasant manner. Furthermore on the issue, the Tribunal notes that there had not been any issue between the claimant and DC during the ten months immediately preceding the receipt by the respondent of the complaint against the claimant from a member of staff in Late October 2013. There was an onus on the respondent to deal with the complaint.
The respondent’s strong culture of respect for residents and staff is reflected in its policies and staff members were on a number of occasions reminded not to speak about other members of staff in their absence. There was a dispute as to whether the claimant had commented in a critical manner on two members of staff and management in the staff room on 21 October 2013. In this regard the Tribunal notes that SCW was a reluctant witness at this hearing, had no difficulty working with the claimant and did not volunteer the statement regarding the comments made in the staff room on 21 October, but none the less her statement corroborates that of CW that the claimant had been critical of staff in the staff room on that occasion. The Tribunal is satisfied that the claimant had been critical of staff members and management in the staff room on 25 October 2013.
The Tribunal accepts the evidence of DC and ADC that they wished to deal with the complaint informally on 25 October 2013. The claimant became very upset. The Tribunal is satisfied that being confronted with two of her superiors and hearing of the complaint for the first time on 25 October contributed significantly to the claimant’s reaction. Had the statements been given to the claimant in advance of the meeting, it would have given her the option to be accompanied at the meeting and provided more balance at that meeting.
The Tribunal feels that the claimant had reason to object to the person proposed to deal with her grievance on the basis of perceived bias. In the circumstances the respondent ought to have reconsidered that appointment.
In a constructive dismissal case the burden of proof is on the employee and the conduct of the employer and reasonableness of the employee’s response fall to be considered by the Tribunal. The claimant had given no indication to the respondent that she was considering leaving the employment and an important factor was that being dissatisfied with HRC conducting the grievance procedure it was open to her and had been pointed out to her that she could refer the issue to the LRC for resolution. Furthermore, the Tribunal is cognisant of the claimant’s evidence that she could not return to work unless DC left or gave up her position and that she would find it impossible to work with staff members who were making up things about her. In light of the Tribunal’s earlier findings on the bullying issue and incident in the staff room on 21 October 2013, the claimant has not discharged the onus imposed on her by the Unfair Dismissals Acts, of demonstrating that she had acted reasonably in terminating her employment. Accordingly, the Tribunal unanimously finds that the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)