ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020041
Health Care Company
Rachel Duffy BL, Aisling Cross of Gore & Grimes, Deborah Byrne
MP Guinness BL, Denise Fitzgerald of Gleeson, McGrath, Baldwin, Bryan Meldrum
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Date of Adjudication Hearing: 15/04/2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
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 complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant was employed as Area Manager from 1st June 2008 to 10th September 2018. She worked full time and was paid €600.00 per week. She has claimed that she was constructively dismissed and has sought compensation. She has also claimed that she did not get holidays while out sick.
1)Unfair Dismissals ACT – CA 26479-001 (Constructive Dismissal)
Summary of Complainant’s Case:
The Complainant stated that she commenced employment in an administrative role and in 2008 she was appointed Area Manager. It was her role to ensure that clients and carers were OK. No contract was issued for that position. The Company grew and her client numbers went from 80 to 400. Her hours of work became much greater up to 70/80 per week. She did not get time off in lieu or extra pay for all these extra hours. In 2009 she was asked to fill a gap as a carer despite not being qualified or experienced. Since 2010 she raised queries at management meetings including the most senior managers. On one occasion, in preparation for a tender she had to work extra hours in its preparation and all she got was to be berated by management. She was constantly compared to her colleagues and criticised for not performing to the same level. In 2012 she was required to cover phones as well. Other managers refused but she didn’t and worked extra hours to do this task as well. In 2012 she was absent due to illness for 3 months. On 28th June 2013 she had a meeting with BM. He told her that she was not qualified to do the job. She then spoke to the owner and asked if she was being demoted to supervisor. She was given a job description of a care supervisor. The owner dismissed the comment by saying “what’s in a title”. It was eventually clarified that her position was Area Manager. The owner shouted at her at that meeting. In 2016 Care Supervisors were appointed but not for her area. She continued to raise grievances. She didn’t get a change of car or lap top when others did. She felt ostracised. She was told that she would get a new car when she signed the new contract. On the day that she went home sick she had spoken to the owner. She made her aware of her unhappiness. The owner told her to go back to work. Then BM asked to meet her at 6.45pm but she went home very unwell. She was distressed at what occurred in the office. She took ill and was absent from work from 26th February 2014 to September 2018, with anaemia, stress, anxiety and depression. In mid-2014 a new HR person was appointed and they contacted her for a chat. She was not well enough to attend. In 2018 she felt well enough to do a course in order to get another job. She resigned her position to take up a new position of Special Needs Assistant (SNA). She took up the new job on 3rd September 2018 and resigned her position on 10th September.
She has claimed that the conduct of the Respondent led her to be absent from work for 4.5 years. This was caused by the Respondent. She had raised her concerns as far back as 2010. The day that she went out sick she made her unhappiness well known to the owner. She had no choice but to resign her position and get a new job. She cited the EAT case Kennedy v Foxfield Inns Ltd in support. While it is established that a person seeking to prove constructive dismissal would have to follow procedures however, in Allen v Independent Newspapers it was found that because of the behaviour of the Respondent it was not deemed appropriate to follow such procedures. She has claimed compensation.
Summary of Respondent’s Case:
Following on from her commencement as Area Manager the company grew. She had a close working relationship with the owner. As the company grew it appointed a Director in 2013 and the General Manger became the Client Services Manager. It was the Complainant’s role to manage up to 200 carers. She had to visit clients and assess the clients position in relation to their care programme. She spent most of her time out of the office and she was provided with a company car. Her usual hours of work were Monday to Friday 9.00am to 5.00pm. Due to the nature of the business her hours varied and she needed to be flexible. In late 2013 the Director spoke with her on an informal basis about her duties and issues that had arisen. She was not happy that these matters were being discussed. On 26th February 2014 she had an altercation with a member of the scheduling team. She walked out and has not returned since. She supplied medical certificates and in June 2014 the HR Manager suggested meeting to discuss her situation, she did not respond and another communication was sent suggesting a meeting but again she did not respond. She issued a personal injury claim on 20th April 2016 seeking compensation for loss of earnings and damages. On 10th September 2018 her solicitor wrote to the Respondent seeking her P45 and to advise that she had found alternative employment. She continued to supply medical certificates. It is the Respondent’s position that she never raised a formal grievance in relation to any issue arising in her employment. The Respondent had introduced support services, but it was not extended to her by the time she went to her solicitor. They also introduced new technology and software to assist their roles. During her employment she received a range of in-house training. Shortly before she went out sick on Tuesday 11th February she emailed the Director about backlogs and other issues including complaints from clients. The Director replied that he accepted that she needed support and that it would happen and suggested a meeting to discuss this on Thursday or Friday. She then went out sick. There were no other issues raised in that email, no other stressors raised. Sick leave is deemed a protected leave and so it was reasonable not to contact her while out sick. She had ignored two attempts to have informal discussions with her. They cited the definition of constructive dismissal in Sec 1 of this Act. They relied upon the tests set out by Lord Denning in Western Excavating ECC Ltd v Sharp  IRC 221. In that case it was submitted that the Complainant was obliged to make a formal grievance and to give the Respondent an opportunity to address the grievance. Failing to formalise her grievance does not satisfy the test. which in this case she didn’t. She had made no attempt to return to work or to seek reasonable accommodation. It is clear if a claimant seeks to invoke the reasonableness test they must also act reasonably themselves. They also cited Conway v Ulster Bank Ltd UD142/1987; Gregory v Cannon Hygienic Products (Ireland) Ltd UD283/1992 and Harrods v St Michaels House UD112/2004 in support.
It is their position that the Complainant did not act reasonably in resigning her position without first having substantially utilised the grievance procedure. It is submitted that the Complainant was not constructively dismissed.
Findings and Conclusions:
Sec 1(b) of the Unfair Dismissals Act defines constructive dismissal; “the termination by the employee of his/her contract of employment with his/her 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 find that in a constructive dismissal claim the burden of proof shifts to the person making the claim. They also have to demonstrate that they were justified in their decision and it was reasonable for them to resign. The claimant needs to demonstrate that they have no option but to resign. In addition, there must have to be something wrong with the employer’s conduct.
I note that Dr Mary Redmond in “Dismissal Law in Ireland P340 states, “There is something of a mirror image between constructive dismissal and ordinary dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so to an employee should invoke the employer’s grievance procedure in an effort to resolve his grievance. The duty is an imperative in employee resignations. Where grievance procedures exist, they should be followed. Conway v Ulster Bank Ltd In Conway the EAT considered that the claimant did not act reasonably in resigning without first having “substantially utilised the grievance procedure to attempt to remedy her complaint.”
I note that in Berber v Dunnes Stores 2009 ELR 61, Finnegan J stated: “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 as such that the employee cannot be expected to put up with it”.
So, it is well established that the Complainant is required to exhaust the company’s internal grievance procedures in an effort to resolve her grievance prior to resigning and initiating a claim for unfair dismissal. In UD1350/2014 M Reid v Oracle EMEA Ltd the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”
In Tierney v DER Ireland Ltd UD866/1999 it stated; “central to this is that she shows that she has pursued to a reasonable extent all internal avenues of appeal without a satisfactory or reasonable outcome having been achieved”.
I note in the EAT case John Travers v MBNA Ireland Ltd [UD720/2006] it stated, “We find that the claimant did not exhaustthe grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.
The EAT in Donnegan Vs Co Limerick VEC UD828/2011stated, ”In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace”. Also the respondent’s conduct was “not so unfair or so damaging to the claimant’s rights and entitlements that she hid no option but to resign her position”
In Murray v Rockavill Shellfish Ltd  23 ELR 331 the EAT stated, “It has been well established that a question of constructive dismissal must be considered under two headings, Entitlement and Reasonableness. An employee must act reasonably in terminating his contract of employment. Resignation must not be the first option taken by the employee and all other reasonable options including following the grievance procedure must be explored. An employee must pursue his grievance through the procedure laid down before taking the drastic step of resigning”.
So, it is clear from the many citations above that the higher courts/tribunals have set the benchmark in order to succeed in a constructive case.
I have applied the tests and benchmark to this case and I find as follows:
The Complainant may have had issues/concerns about her working hours, pressures and potential strict scrutiny of her work which gave rise to her concerns, however she did not formally raise grievance.
I find that the Complainant failed to raise a grievance and then she did not allow the Respondent an opportunity to address her concerns.
I note that the Complainant raised concerns with the Director about scheduling and workload and he immediately suggested times to meet up to address these. I also note that the Director accepted that she had valid concerns.
However, I note that this communication from the Complainant made no reference to stress or anxiety, gave no indication that she was becoming unable to perform her duties.
I note that shortly afterwards she went out sick for over 4.5 years and ultimately resigned her position.
I note that at the early stages of the absence the Respondent made two attempts to engage and have an informal chat about her absence.
I find that the Respondent failed to proactively manage this rather lengthy absence.
I find that it would have been appropriate to refer her for an independent medical assessment.
I find that she undertook and found an alternative position, which she took up on 3rd September 2018 and she communicated her resignation through her solicitor on 10th September 2018.
So, I find that she had commenced employment one week before she advised the Respondent of her resignation.
I find that she made no effort whatsoever during this lengthy absence to engage with the Respondent.
I find that she provided no evidence to explain why it took her 4.5 years to decide to resign and what was the catalyst to resign after such a long time absent, other than she was feeling well enough to find alternative work.
If she was well enough she should have requested engagement with the Respondent company, to address her alleged grievances, which she did not.
I find that the Complainant failed to meet the benchmark set out above and to show that the conduct of the Respondent was such that she had no option but to resign.
I find that she has failed to discharge that burden of proof.
Consequently, I find that her claim must fail.
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.
For the above stated reasons, I have decided that the claim is not well founded and so it fails.
2) Organisation of Working Time Act CA 26479-002
This case was conceded and the Respondent undertook to pay €4,200 in outstanding holiday pay.
This was accepted by the Complainant.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Claim accepted and amount owing to be implemented.
Dated: 28th May, 2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Constructive Dismissal and holidays accrual on sick leave