ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015820
A Care Assistant
A Nursing Home
Anne Lucey, Solicitor/Maria Brosnan Barrister
Pat F. O'Connor O'Connor O'Donoghue & Co.
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: 03/07/2019
Workplace Relations Commission Adjudication Officer: Peter O'Brien
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,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).
The Complainant alleged that she was treated badly after making a Protected Disclosure and had to resign and is claiming constructive dismissal. The Complainant did not have twelve months service.
Summary of Complainant’s Case:
The Complainant made a verbal submission.
The Complainant was employed from November 2017 to June 4th, 2018 when she resigned. She worked as a Part-Time Carer and worked approximately 14/15 hours per week and earned 570 Euros per month and she loved her job.
She was also a full time Carer for her ill father and was in receipt of Carers Allowance.
In April 2018 she witnessed the abuse of an elderly patient and did not know what to do and was unsure as to whether to highlight it or not. She did not highlight it for a few days and consulted her friend who also worked for the Respondent by text. The Complainant contacted the HSE for advice. a few days later she reported the incident to management.
The Complainant was then invited to a meeting with Management to discuss the complaint. She felt the tone of this meeting was poor by management towards her. After the meeting she was given a copy of the minutes which she did not agree with and sought legal advice and was advised not to sign them.
She had difficulty with getting a response to her request for Garda vetting approval at the time which was required for her post despite her making several follow up requests to get the vetting approved by the Garda.
The day after the meeting to hear her complaint into the physical incident she got an email that her Garda vetting was required asap and must be got by May 4th or she may be subject to suspension. until she did get the vetting approved. The same day she got another email to sign the minutes of the meeting into the incident. She got another reminder about the vetting and was told if she did not have it by May 8th she would be suspended pending the receipt of the approval.
On May 9th the Complainant was told that no further action would be taken on her incident complaint following the investigation.
The Complainant returned to work on May 14th following receipt of her Garda vetting approval.
On May 28th the Complainant was given a six-month probation review which she found difficult and complicated.
The Complainant felt stressed at work.
The Complainant felt she had to resign as she was being put under pressure by the Respondnet for making a protected disclosure.
Summary of Respondent’s Case:
The Complainant resigned voluntarily and was not subject to any reasons to leave.
The Complainant raised a complaint against a fellow employee about abuse. The fellow employee was immediately suspended with pay subject to an Investigation. The Garda and the HSE were immediately notified of the complaint. The conclusion of the Investigation stated “Having meetings and interviews with all involved in the allegation, it is clear that no abuse happened and residents feel protected and safe in (the Respondents Care Home). “
After the Investigation did not show abuse took place and did not uphold the Complainants complaint she tried to get another investigation by an external body started. The family of the alleged victim were interviewed during the investigation process and had no issue with the person caring for their parent.
The Complainant was a permanent employee at the time of her resignation and was not subject to a probation review which would have extended her period of probation.
The Complainant is required for her role to be Garda vetted and the Respondent was entitled to ask for a progress report on the vetting six months into her employment. The Respondent gave the Complainant plenty of time and latitude to get her vetting approved.
The Complainants delay in reporting the alleged incident showed she did not think it was serious and her consultation with another employee about it may have arisen from a personal issue with the person she alleged conducted the abuse.
At the probation review meeting it was the Complainant was hostile to the Manager not the other way round. The Complainant made nasty personal remarks against the Manager and chewed gum during meetings with her Manager.
The Complainant never made a protected disclosure but did lodge a complaint of abuse which was proven unfounded after being investigated.
The Respondent denies there were any grounds for constructive dismissal.
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.
Section (1b) of the Unfair Dismissals Act 1977 states “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 claim is one of constructive Dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. The burden of proof, which is a very high one, lies on the Complainant. She must show that her resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, the Adjudicator must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract “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 further performance”.
If the Adjudicator is not satisfied that the “contract” test has been proven, then it is obliged to consider the “reasonableness” test.
“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”
When assessing the reasonableness test all of the circumstances of the case must be considered to establish whether or not it was reasonable for the Complainant to terminate her contract of employment. It is important in a constructive dismissal claim that the Complainant satisfy the test set out by Lord Denning in Western Excavation (E.C.C) Ltd the Complainant, must also show that she exhausted the internal grievance process prior to lodging her claim with any external body. In that regard the case of Conway V Ulster Bank Limited UD 474/1981 is relevant where the EAT stated:-
“In writing the letter of resignation, the appellant did not take the steps outlined in the grievance procedure. The Tribunal has long considered that such agreements, usually described as Union Management agreements, are binding on the parties because they chose to be bound by them”.
The Complainant argued that it is not a mandatory requirement to exhaust the internal grievance process prior to commencing proceedings externally and grievance procedure was not clear. It is well established in law that the general rule is that a Complainant must exhaust the internal process prior to lodging a claim with any external body. On occasion, and in very limited circumstances, when a Complainant can prove, by the production of evidence, that the invoking of a grievance process would be a fruitless exercise the general rule can be displaced. The grievance process was set out in the Complainants Contract of Employment (Clause 13) and she did not invoke or follow this procedure.
During the hearing of this matter it was clear that the Complainant had three main issues:
The Complainant commenced her employment with the Respondent in 2017. She enjoyed her work and following the making of an abuse complaint she felt that the Respondent was harassing her for making the complaint and had upped the pressure on her to get the Garda vetting approval. The Complainant was suspended from work pending her getting the approval, but this was nearly six months after she started work and was not in breach of any requirement as the Complainant was required to be Garda Vetted for her job even though this was not specifically set out in her contract of employment it is an implied term of a Carer’s employment. At the time of her resignation the Complainant was a permanent member of staff, with all that implies, by virtue of a term of her contract of which stated the probationary period was for six months from 22nd November 2017, so the Complainant became a permanent employee on May 22nd, 2018 by the efflux of time. So, the “issues” raised at the probation meeting are not core to the claim.
The Complainant made a complaint that a fellow employee (who had longer service than the Complainant and had no prior issues of that nature) committed abuse of a patient. The fellow employee was immediately suspended with pay by the Respondnet, the Respondent notified the Garda and HSE immediately and they conducted a detailed investigation which exonerated the fellow employee of any abuse. In other words, there was no more a reasonable employer could do in the circumstances. Regarding the Garda vetting issue, the matter was continually being raised with the Complainant and the Complainant was doing her best to get the Garda vetting document. It is not unusual for staff to commence employment pending Garda vetting approval, but on a timely basis. However nearly six months had elapsed in this case and with an external reviews/audits on the Respondnet being forthcoming they acted reasonably in suspending the Complainant pending her Garda vetting approval and immediately re-instated her once the Complainant received the Garda vetting approval.
The Adjudicator finds that the ‘contract’ test “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 further performance” has not been satisfied by the Complainant.
In circumstances were the contract test has not been satisfied the Adjudicator must look at the ‘reasonableness’ test “The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”. The Adjudicator finds that it was not reasonable for the Complainant to terminate her contract of employment in circumstances where she failed to invoke any grievance in relation to her concerns and she was a permanent employee with no risk of losing her job due to the actions of the Respondent. Furthermore, the Adjudicator finds that the Respondent acted reasonably in their dealings with the Complainant and were fair and objective at all times. No evidence was adduced before the Adjudicator which could lead the Adjudicator to conclude that the failure to invoke the grievance process was justified. The Adjudicator also find that the Complainant’s reaction to the three issues was disproportionate to the issues themselves.
The Complainant’s claim pursuant to the Unfair Dismissal Acts, 1977 to 2007 fails.
Dated: 7th August 2019
Workplace Relations Commission Adjudication Officer: Peter O'Brien