ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005264
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: 27/03/2018
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant was employed as a Healthcare Assistant by the respondent. The complainant commenced employment in August 2003 and worked full-time at a gross wage of €761.09 per week. The complainant terminated her employment on 29 September 2016 and her complaint is that the behaviour of management in accusing her of wrongdoing and instituting disciplinary procedures against her left her with no option but to resign. The complainant is therefore claiming constructive dismissal.
Summary of Complainant’s Case:
The complainant was selected for unfair treatment by management.
The complainant lodged an official complaint in which she outlined the various issues regarding her treatment.
The management commissioned a report into these complaints but the complainant was unhappy regarding a number of aspects of that report.
While that investigation was proceeding management made a number of further allegations against the complainant.
The complainant went out on sick leave and then gave in her notice because of the stress she was under from way in which she was being treated.
Summary of Respondent’s Case:
The respondent neither breached the complainant’s contract of employment nor acted so unreasonably that she could have considered herself with no option but to resign.
Any disciplinary action taken was in accordance with the rules and procedures and afforded the complainant her right to natural justice.
When the complainant lodged her grievances they were investigated by a third party and a 30 page report issued.
The complainant resigned from her employment of her own volition.
Findings and Conclusions:
It would appear that issues began to arise between the complainant and the respondent’s management in 2013 and that a number of matters arose in 2014 that led to meetings between the complainant and the respondent’s manager. In a letter sent in November 2014 it was noted that the complainant was absent due to stress and she was advised that the respondent had an Employee Assistance Programme in place, details of which were attached. In January 2015 the complainant was issued with a verbal warning in relation to a number of issues. The complainant appealed the warning and it was upheld albeit with one of the charges removed. A more serious issue arose in July 2015 and the complainant was suspended on full pay pending an investigation. The complainant was represented at the disciplinary hearing by her union and was issued with a written warning. Her appeal was heard by a third party and the warning was upheld. The matter was referred to the WRC under the Industrial Relations Acts and the recommendation of the adjudication officer, issued in July 2016, was that the complainant’s claim was not well founded and failed.
In November 2015, along with other staff, the complainant took an exam regarding the safe administration of medicines. She failed this exam and could not administer medication until she had successfully re-sat this exam. The respondent re-arranged shifts and facilitated exam-leave for the complainant who then passed the exam.
In December 2015 the complainant lodged a detailed, formal grievance letter listing a number of issues in regard to which she had complaints. The incidents outlined in the grievance were, according to the complainant, examples of intimidation, discrimination, bullying and abusive behaviour. The respondent appointed an outside HR Consultancy to carry out an investigation into these complaints. The investigation carried on over a number of months and the final report was issued in mid-July 2016. The report ran to over 30 pages and in its conclusion stated:
“Having taken all of the evidence into consideration, the investigation does not find that (the complainant) was bullied or harassed by (the manager). The investigation does find that (the complainant) has made a complaint in good faith. A contributing factor to (the complainant’s) complaint is that she feels that she is being singled out continuously based on her performance in her role, however the codes of practice on bullying in the workplace specify that Management reacting to legitimate business needs or health and safety concerns are not behaviours to be associated with bullying.”
The complainant was unhappy both with the overall finding and with certain aspects of the report itself. She sought a meeting with management to discuss these concerns.
In the meantime, while that investigation was proceeding, it should be noted that management raised a number of other issues with the complainant. These included investigations into business receipts found in the complainant’s tray in the office and the use of supermarket vouchers. These matters were ongoing in July 2016 and the complainant claimed that these issues were evidence of her being singled out for unfair treatment.
The complainant was absent on sick-leave from 5 August 2016 until 29 August 2016. Her doctor’s certs did not specify a particular illness. The complainant attended a return to work interview on that day and it was noted that she reported that she had been stressed at work and that she felt the benefit of being off. On the same day she submitted a letter of resignation to the respondent which stated:
“The purpose of this letter is to give 4 weeks’ notice, with effect from 29/08/2016 and my final day will be 23/09/2016.
I thank you for the opportunity and professional experience that you and the company have provided me. In addition, I wish the best for both you and the company.”
In the reply acknowledging the resignation the manager clarified that the final working day would in fact be 25 September. The complainant worked her full notice.
The definition of dismissal in the Unfair Dismissals Act, 1977, includes the following:
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…
I therefore must consider whether, because of the employer’s conduct, the complainant was entitled to terminate her contract and whether it was reasonable to do so. An employee is entitled to terminate the contract if the employer is guilty of a significant breach going to the root of the contract or it is clear that the employer no longer intends to be bound by one or more of the essential terms of the contract. The EAT in UD1775/2010 went on to state:
“The reasonableness test asks whether an employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to tolerate it any longer and justifies the employee leaving.”
The events of July 2016 may well have caused anxiety to the complainant. The report of the investigation into her grievance was published and found against her. The recommendation of the WRC investigation was not in her favour and there were further investigations ongoing into other issues. The complainant stated in evidence that she was feeling stressed whilst she was out sick and that she felt that the investigation into the Supermarket vouchers would lead to further disciplinary action. Her family urged her to leave the job and when she returned she handed in her resignation.
The respondent argued that there was a duty to investigate matters and that because a matter was being investigated did not automatically mean that a person would be disciplined. It was pointed out that in the case of the investigation regarding the business receipts the result was the issuing of a memo to all staff who had a company Visa card reminding them of the rules governing the use of same.
Looking at all the evidence I cannot state that the actions of the respondent were so unreasonable as to leave the complainant with no option but to resign. There is nothing to indicate that there was a significant breach going to the root of the contract. Nor was there evidence to show that the employer intended to repudiate an essential part of the contract. The grievance from the complainant had been fully investigated by a third party. The complainant had requested a meeting to discuss issues that she had in regard to the report but went out sick and then resigned before this could be actioned. In general terms, all avenues for dealing with grievances must be exhausted before resignation. Nor is it possible to claim constructive dismissal based on a perception of what might happen as regards disciplinary action. At the return to work interview, whilst mention was made of stress, nothing was said with respect to having no option but to resign. The letter of resignation also makes no mention of the behaviour of the respondent forcing the resignation but rather thanks the respondent for the opportunity and experience. Finally, the decision to work four weeks’ notice is unusual for an employee who is being forced from employment by the actions of her employer. I cannot therefore accept the contention that the complainant was constructively dismissed.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Complaint No. CA-00007376-001:
This is a complaint under the Unfair Dismissals Acts, 1977 – 2015. For the reasons outlined above I find that the complainant has failed to establish that she was constructively dismissed. Her claim under the Acts therefore fails
Workplace Relations Commission Adjudication Officer: Joe Donnelly