ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00003465
A Care Worker
A Residential Care Facility
Anne Hickey Anne Hickey Solicitors
Declan Thomas IBEC
A Care Worker
A Residential Care Facility
Anne Hickey Anne Hickey Solicitors
Declan Thomas IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 17/01/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Location of Hearing: Sligo Meeting Room 2
Further submissions were exchanged following the hearing – the final submission was received from the claimant’s representative on the 2nd.June2017.
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant had been employed as a Care Assistant with the respondent since August 1999 and submitted that owing to the conduct of her employer she was constructively dismissed on the 25th.May 2015. She worked part-time for 18/19 hours per week and it was submitted that she experienced no problems at work until 3-4 years ago.
When an allegation was made against the claimant by a resident in 2013, an investigation ensued; the complaint was not upheld. The claimant asked at the time that she would not be left working on her own with patients into the future. It was a very distressing time for her and she was prescribed anti depressant medication as a result of the allegation and investigation. A chronology of grievances pursued by the claimant was set out – in relation to her phobia with spiders and a requirement by management that she attend at the basement location where the spiders were seen to use the hand scanner and also in relation to the non payment of sick pay.
In 2015, the claimant was advised by the DON that she would have to work on her own; when she challenged this and referred to the earlier agreement that she would be assigned with another Carer it was submitted that the DON said “ it’s not working out for you”. The claimant contended that she was advised that she would have to go where she was assigned by management or be transferred to another location some 30 km away.
It was submitted that he DON reiterated that it was not working out for the claimant at a meeting in October 2015 and she concluded that management wanted her to leave. In another exchange regarding a dispute with a colleague, some time later, the claimant was advised by the DON “its not working out for you and you are always in bother”.
On the 7th.Dec.2015, the claimant was suspended from work arising from an allegation of gross misconduct. The allegation had been made 2 months prior to this. The claimant asserted that the suspension casted a doubt over her character. Although not all of the allegations were proven, the final outcome was that it was deemed that there was a case to be answered under the disciplinary policy – the claimant believed the company had their mind made up from the start. The claimant was precluded from having her solicitor represent her at the investigation. Given the backdrop of the statements made to her by the DON, the claimant believed the investigation was unfair and the findings perverse. The claimant felt she had no option but to resign as she could not continue to work where she believed allegations of sexual misconduct were said to have been proven against her. It was submitted that management had blown the allegations out of proportion and that her suspension was unfair – the respondent had failed to attempt to resolve the complaint informally or through mediation as set out in the respondent’s Dignity at Work policy. The claimant lost all confidence in her employer and had no faith in the investigation or the disciplinary process. At the time the claimant was prescribed Diazepan.
The claimant had found alternative work but incurred a substantial drop in pay of €242 per week.
The provisions of a number of EAT determinations were invoked in support of the contention that the claimant was entitled to resign in the context of flawed procedures being adopted by respondents. A number of Labour Court determinations were also invoked in support of the contention that the employer’s actions were so unreasonable that the claimant was justified in resigning.
In a post hearing submission it was submitted that the Dignity at Work policy should have been implemented for the benefit of the claimant “ who was an employee irrespective of whether it applied to “ the party who had made the complaint. It was contended that while the respondent was bound by the policy it did not implement it – it was submitted that they did not attempt to resolve the matter in an informal low key and non confrontational manner. It was further asserted that they made no effort to suggest mediaton to the parties. It was advanced that the respondent decided to go the formal investigation route the same date the complaint was made. Contrary to the policy the respondent had failed to agree the designated person to conduct the investigation. It was asserted that by failing to comply with the policy and through the immediate suspension of the claimant , the claimant ‘s good name was tainted “ to such an extent that she felt unable to return to work or to continue with her grievance”
The claimant submitted a written statement on the impact of both investigations on her health and well being – she expressed regret at not having accepted the settlement terms that had been offered; she stated that if she had accepted the settlement it would have made her look like she was in the wrong .
In a further submission, the claimant’s representative stated that the respondent had failed to set out a chronology of the events leading up to the suspension of the claimant or present a basis for the decision to suspend. It was contended that no evidence was presented with respect to what had been sought by the worker who made the allegations against the claimant. It was contended that no evidence was presented of having requested the parties to consider mediation. It was contended that the affidavit submitted by the respondent supported their assertion that the claimant was threatened with a transfer to another unit some considerable distance from the claimant’s home. It was advanced that the respondent had failed to clarify why an independent investigator had not been appointed.
In her evidence the claimant denied that there were any sexual connotations to her behaviour in the course of her exchanges with the other party – she said her implants were frequently the subject of discussion with her female friend who gave evidence to that effect .They submitted that the subject of her breast enhancement was not in any way perverted ; that curiosity about how natural the implants were was part of their normal conversation and could not in any way be deemed to constitute sexual harassment.
The claimant asserted that she could not live with a finding that she believed found her guilty of indecent conduct – she indicated that she could not face working with vulnerable older people with such an allegation against her that could be construed as her being a pervert.
Summary of Respondent’s Case:
The respondent set out an account of their management and processing of the complaint against the claimant from the date the complaint was lodged on the 7th.Dec.2015.A decision to suspend the claimant pending the outcome of an investigation was taken on the 7th.Dec. and communicated to the claimant in writing. The detail of all documents furnished to the claimant in the course of the investigation was set out .Details of the ensuing disciplinary process were presented along with a time line for the hearings. The outcome of the disciplinary investigation was presented and ensuing correspondence between the parties about the claimant’s sick leave entitlements were set out.
The respondent asserted that the claimant was at no stage dismissed by the respondent and that the claimant voluntarily terminated her own employment. It was submitted that the claimant had failed to meet the burden required to succeed in a constructive dismissal complaint – it was advanced that the respondent had not breached any essential term of the claimant’s contract and had acted reasonably at all times. The claimant was issued with a final written warning at the end of the disciplinary process and had been given the right of appeal which she had failed to exercise. It was submitted that the claimant remained out sick during this stage, deciding to bring a case of constructive dismissal without exhausting the appeals process or indeed “ if she had any other issues without utilising the respondent’s grievance policy or procedures”.
It was submitted that the claimant at all times had been afforded her rights under natural justice, fair procedures and her contract of employment. It was submitted that the EAT had determined in 1775/2010 that “Except in very limited situations an employee must exhaust all avenues for dealing with his/her grievances before resigning”. It was submitted that it was not reasonable for the claimant to leave her position and she had given no notice to her employer. It was advanced that the claimant failed to conclude the appeals process before lodging her complaint.
It was submitted that the claimant was legally advised throughout her period of sick leave and that she should have been aware of her obligations to firstly exhaust all internal procedures prior to leaving her job and lodging a complaint for constructive dismissal. It was submitted that the EAT had determined that where grievance procedures existed they should be followed.
In a later submission the respondent asserted that the Dignity at Work policy was the appropriate policy and referred to the provisions therein with respect to responsibilities of employees “ …All employees must comply with this policy and ensure that their behaviour does not cause offence to fellow workers or any person with whom they come in contact during the course of their work.
The respondent stated that the former CEO of the respondent took the decision to suspend the claimant – the initial complaint was made to Mr. H who discussed it with the former CEO.
It was submitted that the complainant “ wished for the matter to be formally investigated so therefore the option of resolving the matter informally or through mediation was not the appropriate remedy”. It was suggested that this was evident from the complainant’s comments at her investigation meeting.
An affidavit from a former Director of Nursing who had been referred to in the claimant’s submissions was also presented. The Director denied stating to the claimant that she was always in trouble; that she stated “ It is not working out for you” or that she would be transferred to another unit. It was submitted that on the contrary the Director had been supportive of the claimant and had offered for her to work in HF instead. She stated she had no recollection of having a conversation with the claimant about her spider phobia. She further denied saying that as it was not working out for the claimant “ she should consider her future in 2015”.
In a further submission the respondent advanced that the claimant’s representative continued submissions constituted an attempt to manipulate the case – it was advanced that the hearsay contained therein should be disregarded.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have considered all of the evidence presented at the hearings, the voluminous submissions and the authorities relied upon by the parties.
In her complaint to the WRC the claimant stated as follows:
“I HAVE BEEN WORKING AT ………. SINCE 1999 AND LOVED MY WORK.HOWEVER, SINCE NEW MANAGEMENT TOOK OVER IN 2013 I HAVE FELT UNDER PRESSURE AND UNFAIRLY TREATED .IN DECEMBER 2015 A CO-WORKER MADE AN ALLEGATION AGAINST ME. I WAS IMMEDIATELY SUSPENDED. THE MANNER IN WHICH THE ALLEGATION WAS DEALT WITH AFFECTED MY HEALTH AND I AM NO LONGER ABLE TO REURN TO WORK.I AM CLAIMING CONSTRUCTIVE DISMISSAL DUE TO THIS”.
In order to contextualise the backdrop of the dispute the claimant’s representative set out examples of grievances and conflicts that had arisen with supporting documentation from the respondent, an occupational health specialist and medical reports.
In a letter to the claimant regarding her spider phobia on the 8th.Sept.2014 , the respondent stated as follows “ we have neither the time nor the resources in order to continue to facilitate your clocking in arrangement as reasonable accommodation”. This dispute was ultimately resolved following an Occupational health assessment to the satisfaction of both parties – notwithstanding same I consider it was not unreasonable for the claimant to be aggrieved with the tone and content of the foregoing correspondence.
The claimant’s most recent manager ( who was unable to attend the hearing having moved employment ) denied in her affidavit that she told the claimant “ it is not working out for you”. She further denied threatening to transfer the claimant to a remote location and contended that she was being supportive in offering the claimant a transfer to the FH unit. The manager’s own records of the meeting record the manager as saying to the claimant on the 14.08.15 “ DOS highlighted the claimant’s contract which not only mentions working here but the respondent manage BCNU and we all need to work where the service needs are……………………DOS gave option to the claimant that if she wishes , she may work on HF unit instead as there will be a move between 2 units”.
While I accept the manager’s contention that she did not state the claimant would be moved to the remote location i.e. BCNU, I consider it not unreasonable for the claimant to perceive the statement regarding her contract and that location as a potential threat of transfer.
In the final conflict 9th.October 2015 preceding the claimant’s suspension which related to an incident between the claimant and her colleagues and in respect of which the claimant did apologise, the claimant’s manager records herself as stating “it appears the claimant has a problem with her job and fulfilling the duties of the role and that she has a problem with her colleagues. DOS stated that this is not acceptable and that every time the claimant is on duty she appears to have a problem.”
I find the forgoing examples paint a picture of unresolved conflicts - I further find that the claimant’s assertion in her submission that “ she felt strongly that management wanted her to go “ was not an unreasonable perception .
The respondent was unclear with respect to the chronology of decision making on the matter of the suspension of the claimant. What is not in dispute however is that a decision to suspend the claimant was taken without the claimant being afforded any opportunity to defend herself , that it was taken in response to a statement that was based on an incident that had happened over 8 weeks prior to the submission of the statement , that the language used by the respondent to describe the allegation against the claimant was “ indecent conduct” , that the suspension decision was communicated by the HR Manager to the claimant and that the HR Manager was assigned to investigate the dispute. When asked at the WRC hearing why the respondent did not explore the option of mediation which according to the respondent’s own policy “ is the preferred method under the Dignity at Work Policy for the resolution of complaints of bullying and harassment which are not capable of being resolved by local management” , the respondent’s representative stated that a formal investigation was initiated because this was a complaint of sexual harassment. In later submissions the respondent stated that the complainant “ wished for the matter to be formally investigated so therefore the option of resolving the matter informally or through mediation was not the appropriate remedy. This is also evident from “ the complainant’s comments” at her investigation meeting….At any rate however , these notes are reflective of the complainant’s state of mind regarding the incident”. I do not accept that the comments now relied upon by the respondent are evidence that the complainant was averse to mediation – particularly in the context of a written statement from the complainant received on the 15th.Dec.2015 where she states “ I look forward to this situation been dealt with and a speedy resolution found for all parties involved”. In light of the inconsistent responses from the respondent on this matter and the absence of any evidence of seeking the agreement of the parties to mediation, I am obliged to conclude that the option of mediation was not explored and that consequently the respondent was in breach of its own policy on the matter. I am satisfied that no efforts were made to deal with the complaint informally. I further find that the respondent was in breach of its own policy with respect to the appointment of an investigator – the policy states “ The investigation will be conducted by a designated person(s) agreed between the parties who is not connected to the complaint in any way. ”The Hr Manager who communicated the decision to suspend the claimant was appointed to investigate the complaint – she was not an agreed person and consequently the respondent was in breach of its own policy on this matter.
The matter of suspension without being afforded “ the most basic opportunity to offer an explanation or defend himself” has been considered at length by Justice Noonan in  IEHC 241 The Governor and Company of the Bank of Ireland and James Reilly. Justice Noonan determined that basic fairness requires “ at least a rudimentary explanation of the reason for the suspension which admitted of the possibility of some exculpatory response”.`
On the basis of the respondent’s own record of the meeting of the 7th.Dec.2015 , the claimant was unaware of the allegations that had been made against her at the beginning of the meeting , the decision to suspend the claimant had been taken in advance of the meeting, no compelling evidence was advanced to justify the necessity of suspension and the claimant “ was escorted from the premises following the retrieval of her belongings”. In all of the circumstances , I have concluded that the actions of the respondent in suspending the claimant were pre-emptive and unfair to the claimant and that the claimant’s view that the disciplinary process was predetermined was not unreasonable. I have concluded that the respondent conducted itself in a manner which was destructive of a relationship of mutual trust and confidence and that this conduct was so unreasonable that the claimant was justified in resigning. I believe this finding is consistent with the principles set out by the Labour Court in EED0401. I further find that the respondent breached express and fundamental terms of the claimant’s contract by failing to observe their own procedures under the Dignity at Work Policy.
For the reasons set out in the foregoing paragraph I am upholding the complaint of constructive dismissal. I require the respondent to pay the claimant €17,500 compensation within 42 days of the date of this decision.
Dated: 15th September 2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea