FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : CPL HEALTH CARE (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) TUSLA (THE CHILD AND FAMILY AGENCY) (REPRESENTED BY ARTHUR COX, SOLICITORS) - AND - KEITH BLUNDELL DIVISION : Chairman: Mr Foley Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer Recommendation No r-156581-ud-13/JT.
BACKGROUND:
2. The employee appealed the Recommendation of the Adjudication Officer to the Labour Court on the 15 March 2016 in accordance with Section 9(1) of the Unfair Dismissal Acts 1977 to 2015. A Labour Court hearing took place on the 28 June 2016. The following is the Determination of the Court:-
DETERMINATION:
This case came before the Court as an appeal of a decision of an Adjudication Officer in a complaint made by Keith Blundell (the Appellant)under the unfair Dismissals Act, 1977 (the Act) that he had been unfairly dismissed by the CPL Heathcare and Tusla (the Respondent).
The Adjudication Officer found that he did not have jurisdiction in the matter.
Preliminary Issue
The Appellant had identified both CPL Heathcare and Tusla as Respondents in this case. CPL Healthcare, an employment agency, asked the Court to determine as a preliminary matter whether they were properly identified as a Respondent in the case.
The Court agreed to consider the matter as a preliminary issue.
Section 13 of the Unfair Dismissals (Amendment) Act, 1993 provides as follows
- 13.—Where, whether before, on or after the commencement of this Act, an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act, 1971 , and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract and whether or not the third person pays the wages or salary of the individual in respect of the work or service), then, for the purposes of the Principal Act, as respects a dismissal occurring after such commencement—
- (a) the individual shall be deemed to be an employee employed by the third person under a contract of employment,
(b) if the contract was made before such commencement, it shall be deemed to have been made upon such commencement, and
(c) any redress under the Principal Act for unfair dismissal of the individual under the contract shall be awarded against the third person.
- (a) the individual shall be deemed to be an employee employed by the third person under a contract of employment,
The Case
The Appellant commenced work as a Social Care worker in Ballydowd in 2010. Ballydowd is a Special Care Unit of the Respondent that houses children under a High Court Detention Order on the basis that they pose a serious risk to themselves or to others. The Appellant’s employment with the Respondent terminated in April 2015.
Position of the Appellant
The Appellant contended that he was constructively dismissed. He asserted to the Court that the reasons he left his employment included safety, intimidation and a consistent refusal to implement his rights as an employee. The Appellant set out to the Court concerns he had as regards (1) Access to facilities including flu shots and vaccines, (2) Access to training, (3) Invitations to and payment for attendance at staff meetings, (4) Payment of Assault pay.
The Appellant submitted to the Court that he could ‘possibly have stayed in my job and continue to use mediation to resolve these issues if it were not for the increasing number of assaults and violence in my workplace’
The Appellant submitted to the Court that ultimately, on 20thApril 2015, having responded to an incident involving a service user in the unit next to the one in which he worked, he advised his manager that he would not be willing to work any further shifts in Ballydowd Special Care Unit unless he received written confirmation stating that if he was seriously assaulted in work his medical expenses would be covered and he would receive assault pay. The Appellant contended that his manager, having e-mailed a more senior manager received a reply saying ‘thank Keith for his service’. The Appellant did not return to work in Ballydowd subsequently.
The Appellant stated to the Court that he had been assaulted many times at work and most recently on 23rdand 24thMarch 2015. The Appellant contended that he was constructively dismissed.
Position of the Respondent
The Respondent contends that the Appellant was not dismissed. The Respondent submitted to the court that the Appellant had previously raised issues in his employment and those issues had been engaged with by the Respondent and CPL. The Respondent stated that no grievance had been raised by the Appellant as regards the issues which he states led to his decision to his decision to work no further shifts in Ballydowd.
The Respondent submitted that the work environment in Ballydowd is a particularly challenging one. The respondent also submitted that the Appellant was not the victim of any assault in and around the time he ceased to be employed by the Respondent.
Discussion and Conclusions
There can be no doubt that the working conditions in the Respondent’s Ballydowd facility are difficult and challenging. It is clear to the Court that the Appellant had a range of concerns as regards his working conditions and that the Appellant had utilised various mechanisms to address some of those concerns including referral of issues to the Rights Commissioner Service of the then Labour Relations Commission.
The Appellant contends that he was constructively dismissed. It is for the Appellant to establish therefore that the conduct of the Respondent was such that no person could reasonably have been expected to tolerate it and that he acted reasonably in terminating his employment with no notice on 20thApril 2015.
The Court had been advised at the hearing that the challenging nature of the working environment in the facility was equally burdensome for all employees in a social care role. The Appellant did not suffer uniquely in this regard.
The submission of the Appellant makes it clear that he decided to discontinue his employment on 20thApril 2015 when he did not receive an immediate confirmation in writing of the Respondent’s agreement to pay medical expenses and to provide access to an assault payment scheme in the event of the Appellant being seriously assaulted while at work. In essence therefore the reason for the decision of the Appellant to cease working for the Respondent, notwithstanding any other concerns that the Appellant might have had in his employment, was the failure of the Respondent to immediately accede to the position of the Appellant as regards payment of medical expenses and access to an assault payment scheme.
The Court cannot accept that a failure to immediately concede the benefits demanded by the Appellant on 20thApril 2015 constituted unreasonable behaviour on the part of the Respondent such that the Appellant had no reasonable alternative to the termination of his employment.
There is an onus on an employee contending that they have been constructively dismissed to demonstrate that they have made efforts to resolve the matter other than by termination of employment. In particular there is an onus on the employee to utilise all available procedures to address the issue with the employer.
The Court finds that the Appellant in the within case has not established that he utilised available procedures to pursue his claim for payment of medical expenses and access to an assault scheme following incidents of serious assault.
Determination
The Court, for the reasons stated above, determines that the Appellant in the within case was not constructively dismissed and the appeal fails.
Signed on behalf of the Labour Court
Kevin Foley
27th July 2016______________________
JKChairman
NOTE
Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.