ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00014200
A Psychiatric Nurse
A Charitable Organisation
Psychiatric Nurses Association
The Respondent attended in person and was not represented
Complaint 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: 21/06/2018
Workplace Relations Commission Adjudication Officer: Enda Murphy
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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 Respondent is a charitable organisation and operates a homeless and drugs addiction service. The Complainant was employed by the Respondent as a nurse in its Detox Unit from 28 June, 2016 to 10 October, 2017 when her employment was terminated. The Complainant claims that she was constructively dismissed from her employment. The Respondent denies that a dismissal occurred and contends that the Complainant resigned from her position of her own volition.
Summary of Complainant’s Case:
The Complainant qualified as a Registered Psychiatric Nurse in 1999 and has worked in the area of addiction services since that juncture. The Complainant commenced employment with the Respondent on 28 June, 2016 and was initially contracted on a 12 month fixed-term contract. She was given a contract of indefinite duration on 7 September, 2017.
Shortly following her commencement in 2016, the Complainant began meeting her Line Manager and Clinical Nurse Manager (CNM) for “Supervision meetings”. These meetings generally took place every 6 weeks approx. At these meetings, the Complainant raised concerns regarding the Nursing structure, the role of the Nurse within the Service and the concerns she had regarding the clinical responsibility being placed upon her. She also requested if the Respondent provided any clinical indemnity to the nurses employed.
Due to her concerns regarding nursing practice and procedures and her experience within the Addiction Services, the Complainant volunteered to update care plans and assessment tools used by the service. This was agreed and the Complainant went on to develop care plans for both “Methadone Detoxification” and “Benzodiazepine Detoxification”. Shealso introduced assessment tools for “Opiate Withdrawal” and “BenzodiazepineWithdrawal” and pain assessment.
Although the Complainant’s nursing input was appreciated and introduced by the Respondent, concern remained regarding the nursing and governance structures. The Complainant had also, practically from the start of her employment, raised concerns regarding the practice of a project worker within the Service. Her major concern being the governance of the Unit and the lack of clarity regarding Line Manager and overall responsibilities. Although the Unit was nurse led and managed by a member of Nursing Staff, on occasions where the CNM was not on duty, this particular project worker would take up this responsibility. This was of great concern considering the Unit was a medical one which, supposedly, fell under nursing responsibility even though the Nursing Staff had been informed that they were in charge at all times on duty, this was continuously ignored and decisions continued to be made without regard to any nurse’s opinion by a non-nursing member of staff. At this point the nursing staff wrote to the CNM outlining their concerns.
On 1 September, 2017, the Complainant’s representative wrote to the Respondent outlining the concerns which she and her colleagues had raised. This correspondence, amongst other things, stated that the situation within the workplace had led to the resignation of one nurse and had “resulted in my other members questioning their current position”. In the following days the Complainant again approached the CNM and raised concerns regarding her NBMI registration and the consequences of not adhering to practice guidelines. She also told the CNM that she was considering leaving the service due to this.
Following this meeting the Complainant was contacted by Mr. A, Head of Services, who assured her that he was “aware of her concerns” and that they could “work through” the problem. Mr. A offered to meet the Complainant and informed her that he had received the correspondence from her representative and it was agreed to discuss the issues at a group meeting for all three members on 7 September, 2017.
Prior to this meeting happening, the Complainant received correspondence from Ms. B, Head of HR and Governance, informing her that the Senior Project Worker, the same individual whom concerns had been raised by her, had made a Protected Disclosure. This included a detailed allegation made by the Senior Project Worker against the Complainant which stated: “Friday 26th May, 2017 – the direction by an attending ambulance paramedic for onward referral to a doctor for a client who was experiencing stomach pain was ignored by the Nurse on Duty (the Complainant). CNM (Ms. X) was on leave. It was requested by me that the Nurse record the request of the paramedic for the doctor referral. This was refused.”
This was extremely upsetting to the Complainant who believed it to be a direct response and retaliation to the concerns that she had raised regarding this individual. The provisional finding of the investigation into this matter would eventually clear the Complainant.
The meeting with the Complainant, her two colleagues and their representative went ahead as planned on 7 September, 2017. At this meeting the Complainant was reassured regarding nursing practice, value of nursing staff and clinical supervision and the respect the service had for the nurses practice. This meeting was attended by Mr. A, Head of Services and Ms. B, Head of HR and Governance. An assurance was given at this meeting that Management would attempt to resolve the issues. A list of concerns was drawn up by Management, this included possible solutions and timescales. The participants left this meeting with a sense of relief but unfortunately this did not last long.
At the morning meeting on 1 October, 2017 a client disclosed to the Complainant that the previous day the Senior Project Worker had directed the clients to clean skirting boards in the Service. The client also stated that she felt belittled by this and felt it was not right. The Complainant spent time with the client who had a very serious history of child sexual abuse and addiction. The client had felt that she paid to take part in the programme and that this incident was “not right”. The Complainant documented the complaint on the computerised note/documentation system used by the Respondent.
On 10 October, 2017 the CNM approached the Complainant and requested that she talk with her. At the start of the meeting Mr. A, Head of Services, entered and requested that he speak with the CNM and when she was finished he did not acknowledge the Complainant, there was no further interaction between Mr. A and the Complainant following this. The CNM asked how the Complainant was “feeling” about the allegation made by the Senior Project Worker, the Complainant became upset and informed the CNM that she was “very distressed” over the allegation and was having difficulty sleeping. The CNM stated she could tell that the Complainant was unhappy with practices in the Unit and acknowledged her e-mail of 1 October, 2017 where she outlined other concerns regarding “a letter of review” that resulted in telephone calls being stopped for a client by the Senior Project Worker, which had caused in the Complainant’s opinion, a breach of “his patient and human rights”.
The CNM agreed with the Complainant with regard to her e-mails and then stated: “I have something else to tell you”. She informed the Complainant that the Senior Project Worker had approached Mr. A, Head of Services, regarding the note written on the Respondent’s computerised note/documentation system on 1 October and that following this Mr. A had requested that the IT Department edit the note made by her. This took place on 3 October, 2017.
On hearing this information, the Complainant was extremely upset and fearful for her professional reputation. The CNM stated that she was informing her of this and that she believed it to be wrong and didn’t agree with the practice. At the end of her shift on 10 October, 2017, the complainant rang the CNM and informed her of her decision to leave the service immediately due to the actions of Management and the non-adherence to the reassurances given by Management the previous month. The Complainant believed that this was the only way she could protect her nursing registration with the NBMI and that all trust had been completely eliminated. The Complainant also stated that she could “not believe what was happening considering the Protected Disclosure investigation” was still “ongoing”. The non-editing of notes was also within the terms of reference of the Protected Disclosures investigation. This was the last day the Complainant worked with the Respondent.
Submissions on behalf of the Complainant
The Complainant relied upon the following submissions in support of her position, namely:
· From the outset of her employment with the Respondent, the Complainant fulfilled her professional responsibilities with regard to her practice. She informed Management of concerns and attempted to improve the nursing practice within the service. When this did not improve she contacted her Union over the concerns being raised as she and her colleagues felt that the situation was unsafe.
· Following engagement with the Complainant and her Union, Management gave the impression that Nursing Practice would be respected, that governance would be improved and that Management would support the role going forward. Unfortunately, these promises were not upheld by Management and if anything, the situation became more difficult.
· The Complainant believes that the Respondent allowed the protected disclosure, made by the Senior Project Worker, to take precedence over the care she was legally obliged to give. The expressed concerns of the patient were ignored to the point where a non-nursing member of Management actually deleted/edited a patient’s notes. As a professional, registered nurse this was a complete affront which made the Complainant’s continued employment impossible. The actions of the employer completely destroyed all trust and repudiated the contract of employment in doing so. This made it unsafe for the Complainant to continue in her role as it was in complete contradiction of her responsibilities as a nurse.
· In relation to the note being edited by Management, the NMBI professional guidance document “Recording Clinical Practice” states the following “Nurses/Midwifes making a referral or consulting with another member of the healthcare team should clearly identify, by name, the person in the record”. It also states: “Comments with regard to third parties should always be documented as such. It is best if the exact words are quoted in the records”. The Mental Health Commission document “Excellence in Mental Health records” also states that the Nurse should “identify names and status of other Health Care professionals involved”. The above was completely ignored by Management. The Complainant believes that instead of supporting her in this instance they lied and created a situation that totally undermined and endangered her practice. This action alone completely destroyed all mutual trust between the parties and due to this the Complainant believed that she had no alternative but to protect her resignation with the NMBI by removing herself from her employment.
· With regard to the responsibilities of the employer in safeguarding the registration of the Nurse, the NBMI has laid out this responsibility in correspondence to the Complainant’s Union on 13 June, 2018 in which it has stated the following in relation to the NBMI’s Code of Professional Conduct: “Nurses and Midwifes as professionals, hold positions of responsibility and are therefore, expected to be professionally accountable for their practice, attitudes and actions, including inactions and omissions. Employers also have a responsibility to acknowledge the importance of the codes values and standard with their nursing and midwifery employees, it is the responsibility of the employer to support the nursing practice”. The concerns regarding note editing had also previously been raised at team meetings where the practice was officially stopped following concerns being raised.
· Management’s actions were also contrary to their own Case Notes and Written Correspondence Policy which states that “staff are personally answerable under Law for everything they write/don’t write”. It also states that the Respondent believes that “shoddy” records equals “shoddy care”.
· Ten days following the complainant’s dismissal, the Head of HR and Governance, Ms. B, wrote to nursing staff in response to concerns raised. She stated the following: “Following concerns raised by the nursing team regarding recent changes of case notes, the management at (the Respondent organisation) hereby assure the nursing team that there will be no changes effected to any case notes including medical files, client files or handover notes.” Point 5.9 of the Respondent’s Policy states that: “The quality of case notes and written correspondence must in the first instance comply with the principles laid out in this policy document. Once a case note, medical record or handover note is recorded by an employee, it cannot be changed by management or another employee. Any quality issue raised in relation to case notes will be handled through – the Respondent’s – processes and procedures e.g. supervision or training”.
· The Labour Court in the case of Paris Bakery & Pastry Limited -v- Mrzljak held that: “Where an employer commits a repudiatory breach of contract the employee is entitled to accept the repudiation and consider him or herself dismissed. However, not every breach of contract will give rise to repudiation. It must be a breach of an essential term which goes to the root of the contract”. The Complainant believes that the actions of management resulted in the breakdown of the relationship and placed her in a completely unreasonable and unsatisfactory situation that ultimately placed her registration and this career in jeopardy. The Complainant believes that this breach was an essential term of contract, considering she was employed as a Nurse and was obliged as a professional to ensure that she adhered to the professional standards laid down by the Nurses and Midwives Board of Ireland.
Summary of Respondent’s Case:
The Complainant had been working as a nurse in the Detox Unit of the Respondent’s organisation for approx. 16 months and at the point she resigned there had been no indication of any formal grievance having been raised by her. The Clinical Nurse Manager (CNM) did raise the issue of inter-personal difficulties arising between the Complainant and the Senior Project Worker during the summer months in 2017 (June to September). This issue was handled at supervision level with the CNM rather than going into any formal proceedings.
The Complainant was informed on 30 August, 2017 of a Protected Disclosure case in which she was named and which was brought by the Senior Project Worker. The Complainant verbally informed her Line Manager of her wish to terminate her employment on or around September, 2017. The Respondent’s management were informed of the Complainant’s intention and they in-turn informed her Line Manager that the organisation would not accept her resignation, as she was a highly valued member of the nursing team.
The Respondent submits that tensions in the Detox Unit were very heated around this time between all parties. A full investigation was carried out by an external reputable investigator into the Protected Disclosure and all parties have been exonerated of any wrong doing.
Around that time the Respondent was contacted by the Psychiatric Nurses Association (PNA). A meeting was arranged with the nursing team and the PNA official on 7 September, 2017, where a number of issues were highlighted regarding the operation of the centre including:
· The detox structure being unclear around clinical calls and clinical responsibility in the absence of the CNM.
· Implementation of a revised structure to address point 1.
· Concern from the nursing team over protected disclosure issues and the implications of same.
· The nursing team did not currently have access to a doctor/clinical lead on a 24/7 basis. This was highlighted as a deficit in scenarios where advice and clinical decision making by a doctor/clinical lead were required. The structure in point 2 was to address this point also.
· The nursing team being called upon to perform triage/assessments on clients without any prior knowledge of case histories.
The Respondent responded with a timeline (up to January 2018) for addressing the abovementioned issues which were raised at the meeting.
On 1 October, 2017, the Complainant was on duty in the Detox Unit and recorded her handover notes on the Respondent’s operational information system. On 3 October, 2017, the Senior Project Worker stated that he had issues with a note that the Complainant had written on 1 October, 2017 which named him on the basis that he believed it was inappropriate. The Management Information Systems Administrator agreed that the information was subjective and agreed to edit the note to remove the subjective information.
The CNM spoke to the Complainant on 10 October, 2017 and advised her that the note had been amended and suggested other more objective ways to document information. Later that evening, the Complainant informed the CNM that she felt she couldn’t work for the Respondent given that her recorded notes could be edited by another person without consulting her first. The Complainant terminated her employment on 10 October, 2017. It was not possible to dialogue with the Complainant in terms of addressing the issues concerned with a view to retaining her in the employment of the Respondent. The Respondent accepted the Complainant’s resignation on 12 October, 2017.
The Respondent submits that all staff are aware of the grievance procedures within the organisation whereby it aims to resolve problems and grievances promptly and fairly. It aims for this to happen as close to the source as possible with graduated steps for further discussion and resolution at higher levels of management as necessary. The grievance procedures describe the process by which a member of staff may formally forward a grievance regarding any condition of their employment to be heard by management within the organisation – it should be noted that the Complainant did not follow this process to address her concerns. The Grievance Process is an expressed term in the Contract of Employment and part of the induction process.
The Respondent submits that since this issue in October, 2017, all staff have been trained in note taking/report writing skills and an organisational wide training course has been developed and is currently being rolled out.
The Respondent submits that its defence to the present claims is as follows: The Complainant did not give the Respondent the chance to discuss or rectify her grievance; she should have tried to resolve her concerns internally before seeking to claim; she should have initiated the internal grievance procedure when she found out about the amendment of her notes; she left without working her notice – she was paid for hours worked and all annual leave accrued; the Complainant, through the Psychiatric Nurses Association, was offered to apply for a part-time nursing role – on similar terms and conditions similar to her previous role but she declined; it is known that there is a shortage of nurses in the country and particularly nurses with additional skills – hence the time between the Complainant terminating her employment with the Respondent and finding alternative employment from October, 2018 should be taken into consideration.
In summary, the Respondent submits that the Respondent acted reasonably and engaged with the Complainant’s Union but to no avail. The breach of contract must be sufficiently serious to justify the employee resigning and the Respondent believes that this issue was not sufficiently serious for the Complainant to terminate her employment. The Complainant did not instigate the Respondent’s Grievance Procedures and therefore resigned of her own volitions.
Findings and Conclusions:
As the Complainant is claiming constructive dismissal, the fact if dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.
The term “constructive” dismissal is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which provides that:
““dismissal”, in relation to an employee, means—
(b) 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.”
The legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”
The Complainant claims that there were serious difficulties in relation to the governance and a lack of clarity regarding line manager responsibilities in the Unit where she worked which resulted in a dangerous and unsafe environment for clients and her continued practice within the Unit. The Complainant contends that she had raised this situation with management on several occasions but to no avail and the matter was subsequently taken up with the Respondent on her behalf by her Trade Union. The Complainant contends that the situation became intolerable and that all mutual trust in the working relationship between the parties was destroyed after it was brought to her attention that a member of senior management had requested the IT Department to edit a note in relation to a patient which she had placed on the Respondent’s computerised note/documentation system. The Complainant claims that the actions of the Respondent in doing so created a situation that totally undermined and endangered her practice as a nurse and she was left with no option but to resign from her employment in order to protect her registration as a nurse.
The Respondent denies that the Complainant was dismissed, either constructively or otherwise, and contends that she left her employment of her own volition. The Respondent does not dispute that there were difficulties in the operation of the Unit where the Complainant worked. However, it claims that management had been dealing with these issues and had put measures in place to try and resolve the concerns raised by her. The Respondent contends that the Complainant left her employment without invoking the internal grievance procedures in relation to her concerns and thereby denied it the opportunity to try and resolve these issues prior to her resignation.
The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate her contract of employment. The Complainant is replying on both tests to ground her claim in the instant case. I will first examine if there was a repudiatory breach of the Complainant’s contract by the Respondent.
In considering the “contract test” the Labour Court has held in the case of Cedarglade Limited (formerly Pineglade Limited) -v- Tina Hliban that: “In advancing her claim of constructive unfair dismissal under the Acts the Complainant must demonstrate that the Respondent has acted so unreasonably and/or committed a fundamental breach of contract such that it was not possible for her to remain in her employment any longer. Whether or not this test has been satisfied in any particular case has to be considered from an objective perspective. Therefore, the Court must examine whether or not, by the application of a normal standard of reasonableness, an employee in the same circumstances as the Complainant would be justified in resigning in response to the employer’s conduct, whether or not that result was intended. In the Supreme Court case Berber v Dunnes Stores  ELR. 61 Finnegan J. held:-
“The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”
…….. It is not suggested by the Complainant that the Respondent breached any express term in her contract of employment. It is, however, settled law that every contract of employment contains an implied term that the parties will maintain mutual trust and confidence in their working relations with each other as held by the High Court in Cronin v Eircom Ltd  18 ELR 84. In that case Laffoy J. adopted the reasoning of the House of Lords in Malik v Bank of Credit and Commerce International SA (in Liquidation)  AC 20. The Judge held that as a matter of legal principle every contract of employment must be deemed to contain a condition implied by law of mutual trust and confidence.”.
Having regard to the evidence adduced, it is clear that there was serious difficulties in the operation of the Detox Unit where the Complainant worked during the months prior to her resignation. These difficulties centred primarily around the role and responsibilities of the Senior Project Worker and his working relationship with the Complainant and other members of the nursing staff within the Unit. I have found the Complainant’s evidence to be very compelling and I accept that she had genuine and legitimate concerns in relation to the overall governance and safe practice within the Unit which she claims was being compromised by virtue of the Senior Project Worker taking clinical decisions in a medical unit without having the relevant qualifications to do so.
I am satisfied that the Complainant had raised these concerns with the Respondent’s management on several occasions during the course of her employment but to no avail and the matter was subsequently taken up with the Respondent on her behalf by her Trade Union. In this regard, I note that the Complainant’s Trade Union wrote to the Respondent on 1 September, 2017 in relation to these concerns and stated that “These concerns have been raised for nearly a year and although the Nursing staff have been informed that they are in charge at all times on duty, this has been completely ignored and decisions have continued to be made without any regard to any nurses opinion by a non-nursing member of staff”. Having regard to the foregoing, I am satisfied that the Respondent was fully aware of these concerns and that action was required in order to address these issues.
The Respondent adduced evidence that it had put measures in place to try and address the concerns raised by the Complainant and her colleagues and referred specifically to a number of initiatives which emanated from a meeting between the respective parties on 7th September, 2017. The Complainant refuted the Respondent’s contention on this issue and claims that any such measures put in place to address these concerns either prior to the meeting on 7th September, 2017, or subsequently, were wholly ineffective and did not resolve any of the issues of concern.
Having regard to the totality of the evidence adduced, I have found the Complainant’s evidence on this issue to be more compelling and I find that the concerns which the Complainant had raised regarding safe practice and the difficulties concerning the governance of the Unit were not satisfactorily addressed by the Respondent and that the situation became progressively worse over a sustained period of time prior to her resignation. Furthermore, I accept the Complainant’s evidence that the Respondent’s failure to effectively address these issues had resulted in a dangerous situation for clients and for her continued practice as a nurse within the Unit.
I note that it was not in dispute that the Complainant had informed the Respondent in early September, 2017 that she was considering leaving her position due to the ongoing difficulties in the operation of the Unit but was persuaded from doing so following assurances from Mr. B, Head of Services, that her concerns would be addressed. I also note the Complainant’s uncontested evidence that one of her nursing colleagues in the Unit had resigned prior to this juncture as a result of the difficulties and concerns which were ongoing in relation to the governance and safe practice within the Unit.
I also accept the Complainant’s evidence that her workplace difficulties were compounded when the Senior Project Worker made a complaint of wrongdoing against her by way of the Protected Disclosures legislation. It is clear that the Respondent was obliged to investigate this matter in accordance with its procedures under the Protected Disclosures legislation and I note that the preliminary findings of the subsequent investigation exonerated the Complainant of having engaged in any wrongdoing in relation to this matter. While I have not been presented with sufficient evidence to fully substantiate the Complainant’s claim that this complaint was made by the Senior Project Worker in retaliation for her having raised concerns about the governance and clinical decision making in the Unit, I am satisfied, on balance, that the motivation for the making of this complaint was not unrelated to the fact of the aforementioned work-related issues having been brought to management’s attention by the Complainant. Notwithstanding the foregoing, I am satisfied that this complaint by the Senior Project Worker further exacerbated the considerable difficulties the Complainant was experiencing in her working environment at that juncture.
The Complainant contends that the situation became intolerable and that all mutual trust and confidence in the working relationship between the parties was destroyed after it was brought to her attention on 10 October, 2017 by the CNM that a member of senior management (namely, Mr. B, Head of Services) had asked the IT Department, upon the request of the Senior Project Worker, to edit a note she had placed on the Respondent’s computerised note/documentation system. This note related to an incident that occurred between the Senior Project Worker and a patient on 30 September, 2017. The Complainant contends that the patient had informed her that the Senior Project Worker had directed her to clean skirting boards in the Unit and that she felt belittled by this and felt it was not right.
The Complainant resigned on 10 October, 2017 following this incident and claims that the actions of the Respondent in relation to the editing of this note without her knowledge or consent created a situation that totally undermined and endangered her practice as a nurse and she was left with no option but to resign from her employment in order to protect her registration as a nurse with the NMBI.
I have taken cognisance of the strict requirements and policies that members of the nursing profession are obliged to comply with in relation to the compilation and recording of case notes relating to patients and the serious consequences that may arise for breaches of such requirements and policies. In particular, I note that the Respondent’s policy entitled “Case Notes and written correspondence policy” states that “Staff are personally answerable under law for everything they write/don’t write”. Having regard to the foregoing, I am satisfied that the Respondent’s actions in editing the Complainant’s patient notes, especially in the absence of any prior consultation or consent from her, was totally reprehensible and seriously undermined her position within the organisation and potentially endangered her reputation and continued practice within the nursing profession.
Having regard to the totality of the evidence, I am satisfied that the cumulative effect of the safety related and governance difficulties which the Complainant had repeatedly raised over a sustained period of time in relation to the operation of the Unit, the Respondent’s failure to adequately address these issues and ultimately, the editing of her patient notes resulted in an undermining of the relationship of trust and confidence between the parties. In the circumstances, I find that the cumulative effect of these matters which led to the Complainant’s resignation constituted a fundamental breach by the Respondent going to the root of her contract of employment.
I must also address the issue as to whether the Complainant acted reasonably by resigning prior to invoking a formal grievance through the Respondent’s established internal grievance procedures. The Respondent has argued that the Complainant’s failure to invoke the formal grievance procedures in relation to the amendment of her case notes, prior to her resignation, is fatal to her claim of constructive dismissal. It is well established that there can be situations in which a failure to give prior formal notice of a grievance will not be fatal (see Liz Allen -v- Independent Newspapers, Moy -v- Moog Ltd, and Monaghan -v- Sherry Bros and New Era Packaging -v- A Worker).
I am satisfied that there are a number of factors, which in the exceptional circumstances of this case, excuse the Complainant’s failure to raise a formal grievance under the internal grievance procedures before resigning. Firstly, as I have indicated above, I have found that it was the cumulative effect of the ongoing difficulties which the Complainant encountered in the workplace over a sustained period of time which resulted in an undermining of the relationship of trust and confidence between the parties. The issue relating to the editing of the Complainant’s notes was the final event in a series of workplace related difficulties that ultimately forced the Complainant to tender her resignation. Secondly, I am satisfied that the Complainant had, prior to this final event relating to the editing of her patient notes, brought her concerns in relation to these ongoing workplace issues to the Respondent’s attention on several occasions, albeit not through the formal grievance procedures, but the Respondent failed to adequately deal with the situation or resolve the matter. Thirdly, following the Complainant’s resignation, the Respondent did not make any attempts to try and dissuade her from resigning or to retract her resignation.
In the circumstances, I find that the Complainant has satisfied the test that the Respondent committed a repudiatory breach of her contract of employment and that it was reasonable of her to resign from her employment. Accordingly, I find the complaint of unfair dismissal is well founded.
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.
I find that the Complainant was unfairly dismissed by the Respondent within the meaning of the Unfair Dismissals Acts and that the complaint is well founded.
In accordance with the provisions of Section 7 of the Act, I consider that the appropriate redress in all the circumstances of the present case is compensation. In assessing the level of compensation to be awarded I note that the Complainant was earning a gross yearly salary (including allowances) of €24,585 at the material time of her dismissal. The Complainant gave evidence that she has been available for work and has been actively seeking to obtain alternative employment following her dismissal but employment opportunities for nurses in the area of substance addiction are limited outside of the large urban centres. The Complainant confirmed that she has secured alternative employment within this area of activity which will commence on 1 October, 2018.
Having regard to the foregoing, I deem that an award of €15,000.00 (i.e. fifteen thousand euro) to be the appropriate award in the circumstances of this case arising from her dismissal.
Dated: 20th September, 2018
Workplace Relations Commission Adjudication Officer: Enda Murphy
Unfair Dismissals Act 1977 – Constructive Dismissal – Section 1(b) – Contract Test – Reasonableness Test – Complaint well founded – Compensation awarded
  1 All E.R. 713
  13 ELR 84
  13 ELR 261
  14 ELR 293
  ELR 122