FULL RECOMMENDATION
PARTIES : OAKLODGE FOSTERING LTD DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S) ADJ-00019117 CA-00024996-001 Background The Complainant commenced employment with the Respondent as a Placement Support Worker on the 6thJuly 2014 and resigned her employment in circumstances she claimed amounted to constructive dismissal on 3rd November 2018. The Complainant worked 14 hours a week over two days and her hourly rate was €22. The Respondent submits that the Complainant was not dismissed and that she resigned her position. The Complainant lodged her complaint with the WRC on the 14thJanuary 2019. The cognisable period under the Act is 15thJune 2018 to 14thJanuary 2019. As dismissal is in dispute it is for the Complainant to establish that a dismissal took place. Summary of the Complainant’s submission and evidence. In September 2017 the Complainant returned to work following a period of Maternity leave. Shortly after her return there was a HIQA inspection which identified a number of issues that required to be rectified. The Respondent undertook to assign a Quality Control Manager to assist with addressing the concerns. The Complainant in her evidence submitted that she made a protected disclosure to her supervisor Dr Bankes at a meeting she had with him, at his house at 2.00pm on the 27thApril 2018. It is her evidence that she asked to meet with him and was driven to the meeting by her husband. In support of her contention that she had such a meeting she submitted a photocopy of the relevant page from her diary which contained some scribbled notes. It was the Complainant’s evidence that she made a protected disclosure about a number of issues. Mr Kirwan the Complainants husband in his evidence stated that he had driven the Complainant to Dr Bankes house on the 27thApril 2018 and that he had fixed Dr Bankes car. It is the Complainant’s evidence that a few months later on the 19thOctober 2018 she was asked to attend a meeting with Ms Rose Fitzpatrick Office Manager and her line manager Mr Cecil Agar. She was not told in advance what the meeting was about. At that meeting she was informed that complaints had been made against her by a number of foster carers and that she was being suspended with pay. The Complainant was not given a copy of the complaints or told who had made them she was just informed of the general nature of the complaints. The Complainant was told that Mr Agar who had received the complaints would carry out an investigation. The Complainant queried whether she could lose her job and was informed by Ms Fitzpatrick that it was a possibility. On the 25thOctober by text message, the Complainant was invited by Ms Fitzpatrick to attend two meetings the following day one with the Mr Agar and the second with Dr Bankes. When the Complainant queried the two meetings, she was advised by Ms Fitzpatrick that the first meeting with Mr Agar was to put the allegations to her and allow her comment and the second was with Dr Bankes who would inform her of the outcome of the investigation. At the first meeting the Complainant again raised the issue that she had not been given a copy of the complaints. Mr Agar advised that she would not be receiving a copy of them but that he would read them out which he proceeded to do. Later the same day at the second meeting the Complainant was told that the investigator had upheld the complaints and had stated in the report “If Lareina is to remain with Oak Lodge Fostering Services, I recommend that she is not returned to front line service until such time as she regains the trust of the company with regard to her practice”. It is the Complainant’s evidence that she never received a copy of the investigator’s report. On the 26thOctober 2018 she was invited to a meeting where she was informed that foster carers no longer wanted to work with her, that her work hours and wages were being cut by fifty per cent and she would have to work in the office. The Complainant was informed that the matter would be reviewed in three months. When the Complainant sought clarification as to what work she would be doing, no response was forthcoming. It is the Complainant’s evidence that she believes the manner in which she was treated was linked to the fact that she had raised issues with Dr Bankes at the meeting in his house in April 2018. The Complainant at that point was certified unfit for work due to stress by her GP. By letter of the 5thNovember 2018 the Complainant arranged to meet with Ms Fitzpatrick. At the meeting she queried what her new role would be. Ms Fitzpatrick was unable to provide any information in respect of same. It was at that point the Complainant decided to hand in her resignation as she believed she had no future with the Respondent. It is the Complainant’s evidence that she did not appeal as she did not know who to appeal to, in circumstances where Dr Bankes who headed up the organisation had made the decision to impose the sanctions. It is the Complainant’s evidence that she had not been afforded fair procedure during the investigation or disciplinary process and did not believe that even if she knew who to appeal to, any appeal would be given fair consideration. Mr Asmussen BL on behalf of the Complainant submitted that the procedure was flawed from the start. Dr Bankes had been involved in the process from start to finish and the decision to uphold the complaint had been made before the Complainant had the opportunity to respond to the allegations. The Complainant had not been given the complaints and it later transpired that while a number of issues had been raised at a meeting only two formal complaints in writing were made. One complaint had not been received at the time of the investigation and both were subsequently withdrawn. Mr Asmussen BL submitted that the Complainant could not be expected to have faith in a process where the Respondent had not at any stage followed their own procedure. The Respondent had disciplined her and imposed a severe sanction based on complaints that the Complainant had never seen and had been withdrawn. The Respondent had cut her wages by fifty per cent, told her she could not work with foster carer’s and provided her with no information in respect of the role in the office they said they were assigning to her. Mr Asmussen BL on behalf of the Complainant submitted that the Respondent’s behaviour in unilaterally cutting the Complainant’s wages by fifty per cent constituted a breach of a fundamental element of her contract of employment and the manner in which the Respondent had carried out the investigation and disciplinary procedure was behaviour that was so unreasonable that the Complainant, had no option but to resign. Summary of the Respondent’s submission and evidence. It is the Respondent’s submission that the Complainant did not make a protected disclosure. The issues she referenced were raised by HIQA in January 2018 and the organisation was working on addressing the issues. A copy of the HIQA report was submitted by the Respondent in support of their position. Dr Bankes Director of Oaklodge Fostering Limited gave evidence that he did not recall a meeting in his house with the Complainant on the date stated. Dr Bankes acknowledged that from time-to-time staff would call to his house. He did not dispute that Mr Kirwan fixed his car, but he did not believe that it was on the 27thApril 2018. It is Dr Bankes evidence that when he did Supervision meetings the person receiving the supervision would normally draft a minute of the meeting which they would then both agree. The fact that did not happen on this occasion reinforces his belief that the meeting as alleged did not occur. It was Dr Bankes evidence that Mr Agar informed him about complaints he had received at a meeting with foster carers in respect of the Complainant. He told Mr Agar to suspend the Complainant and asked Mr Agar to investigate the complaints and to keep the Complainant informed as to what was happening. When the investigation took place, it was Dr Bankes evidence that he asked Ms Fitzpatrick to liaise with their HR advisors and to attend a disciplinary meeting arising from the investigation to take notes. At the disciplinary meeting it was Dr Bankes evidence that he informed the Complainant of the complaints and gave her the reasons why he did not want to inform her of who had actually made the complaints. It was Dr Bankes evidence that as a result of the complaints being made, he decided to put the Complainant on reduced hours for three months because in his opinion she had crossed the professional boundaries with carers. It was his evidence that she was to work one day a week in the office to be reviewed in three months. In response to a question under cross examination from Mr Asmussen BL, Dr Bankes confirmed that he had instructed Ms Fitzpatrick to issue the email on the 24/10/2018 to their HR advisers stating that following on from the investigation it had been discovered that there had been a breach of policies and confidentiality and that they were considering dismissal. Dr Bankes accepted that the email suggested that a finding had been made whereas in fact at that point the investigation had not been completed and the Complainant had not been interviewed. Dr Bankes also accepted that the report was not finalised until the 25thOctober 2018. Mr Amussen BL put it to Dr Bankes that based on his evidence, that he had other discussions with Mr Agar who kept him informed about his discussions with the foster carers, that his level of involvement in every stage of the process was totally inappropriate. In response to a question from Mr Asmussen BL Dr Bankes confirmed that he did not provide the Complainant with a copy of the investigation report, nor did he advise her in advance of the meeting on the 25thOctober of the outcome of the investigation or put her on notice of the likely outcome or the right to be accompanied at the meeting. Dr Bankes also confirmed that the Complainant was not advised of her right to appeal the sanction that he had decided to impose. Dr Bankes could offer no explanation for how he had come to the decision that this was an appropriate sanction and accepted that a sanction of this nature was not contained in the Respondent’s policies. Dr Bankes did not dispute that their HR advisors had indicated that a written warning would be an appropriate sanction. Ms Fitzpatrick Office Manager was the next witness to give evidence on behalf of the Respondent. It was Ms Fitzpatrick’s evidence that she sent the email on the 24thOctober 2018 to their HR advisors stating they were considering dismissal. It was her evidence that this was discussed at a meeting between herself, Dr Bankes and Mr Agar and she was requested to send the email. The response they received from the HR advisors was that the issues raised did not warrant dismissal. It was her evidence that she passed the response on to Dr Bankes. It was Ms Fitzpatrick’s evidence that she was surprised when the Complainant submitted her resignation. It was her evidence that she thought the matters had been resolved at the meeting on the 26thOctober when the Complainant was told that her hours and wages were being reduced by fifty per cent and that she was being assigned to office work. It was Ms Fiztpatrick’s evidence that she thought the procedures were fair as they were informal procedures. Ms Fitzpatrick confirmed that at the time she was talking to the Complainant she did not know what her new role would be, that was a matter for Dr Bankes to decide. In response to a question under cross examination Ms Fitzpatrick stated that the Complainant worked with 12 foster carer couples and as far as she knew there was one written complaint from one foster carer. It was her evidence that she rang the Complainant on the 19thOctober 2018 and advised her that there were concerns and invited her to a meeting to discuss same. Ms Fitzpatrick confirmed to the Court that she could not recall advising the Complainant that she could be accompanied at the meeting. At the meeting the Complainant was suspended, and the Complainant’s work phone and keys were taken from her. Ms Fitzpatrick denied saying that the Complainant would lose her job. However, she did recall Mr Agar stating that he would meet with the Complainant before he reached any conclusions. It is Ms Fitzpatrick’s evidence in response to a question from Mr Asmussen BL that the investigation was still ongoing when she sent the email to the HR advisors. It is her evidence that the words in the email were Dr Bankes and not hers and that Dr Bankes instructed her to send the email. Ms Fitzpatrick accepted that the Respondent was considering dismissal prior to the investigation being completed. In respect of the meeting on the 26thOctober 2018 Ms Fitzpatrick confirmed that this was the first time the Complainant heard the full complaints, but she still was not told the identity of the foster carer’s who had made the complaints. It is Ms Fitzpatrick’s evidence that she was aware that one of the foster carers had retracted their complaint, but the Complainant was not told this. Ms Fitzpatrick confirmed that the investigation did not meet the requirements of the Respondent’s procedures. The final witness for the Respondent is Mr Cecil Agar who confirmed to the Court that he was asked to investigate the complaints and that he liaised with Ms Fitzpatrick in respect of same. It was his evidence that three people had made written complaints and as far as he was aware they had all retracted same. At the time of the investigation, he still had not received one of the written complaints, but he included it in the investigation. It was his evidence that he had informed either Dr Bankes or Ms Fitzgerald that complaints had been retracted and he was aware that one person had contacted the office directly to retract their complaint. It was his evidence that as far as he could remember some of the complaints were retracted after the investigation was completed. In response to a question under cross examination from Mr Asmussen BL it was Mr Agars evidence that in respect of the meeting of the 19thOctober 2018 where the Complainant was told that she was being suspended, it was his evidence that he did not tell her that she could have representations or give details of the allegations against her. It was his evidence that Ms Fitzpatrick may have said that the Complainant may lose her job. It was Mr Agar’s evidence that Dr Bankes was the driving force behind the procedure and that Dr Bankes had expressed a view that he thought it warranted a dismissal prior to the investigation being completed. Mr Agar was asked why in his investigation report he had made recommendations in respect of what should happen to the Complainant. It was his evidence that he did not have a say in the outcome that the direction to insert those lines in the report came from Dr Bankes. Mr Asmussen BL put it to Mr Agar that the entire investigation was fundamentally flawed and a sham. It was Mr Agar’s evidence that he just followed instruction. Mr Bankes in his closing submission on behalf of the Respondent submitted that he did not influence the investigation He felt the complaints were a blip and by putting the Complainant on fifty per cent hours and wages and office work she would have the opportunity to re-build their trust in her. It is his submission on behalf of the Respondent that the Complainant does not meet the test for constructive dismissal, and he referred the Court to the relevant sections in the legislation. The applicable law Section 1 of the Act defines constructive dismissal in the following manner “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,” Section 6(1) of the Act states “ Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.
Section 1of the Act envisages two circumstances in which a resignation may be considered a constructive dismissal. Firstly, where the employer’s conduct amounts to a repudiatory breach of the contract of employment and in such circumstances the employee would be entitled to regard himself or herself as having been dismissed. This is, often referred to as the “contract test”. In Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 it was held that to meet the “contract test” Mr Asmussen BL also submitted that the behaviour of the Respondent in terms of the manner in which they carried out the investigation and disciplinary meeting was so unreasonable as to make the Complainant’s continuing employment untenable. The Court notes from the evidence of the Respondent’s witnesses that Dr Bankes was not only involved with the process from the start but also dictated the direction it should take and the expected outcome. The Court also notes that the Respondent’s witnesses who appeared before the Court under summons gave evidence that the Respondent’s procedures were not followed, the advice from the Respondent’s HR advisors were not followed, discussion about the outcome were had between the three people involved in the process prior to the investigation being completed, the Complainant was not given a copy of the complaints, was not informed of her right to be accompanied as set out in the Respondent’s policy, and was not afforded the right to appeal the sanction. It is difficult to see how procedures as fundamentally flawed as were described to the Court in the evidence of the Respondent’s witnesses including the evidence of Dr Bankes himself could be described as reasonable behaviour. The net issue for consideration is whether the Complainant’s employment came to an end in circumstances of dismissal within the meaning of the statutory definition of that term contained at section 1 of the Act. In reaching its conclusion on that question the Court has carefully evaluated the evidence adduced in the course of the appeal and it has taken full account of the written submissions made by the parties. The Court finds in this case that the decision by Dr Bankes to cut the Complainant’s salary in half without any justification for doing so was a significant breach going to the root of the contract and on that basis the Complainant was entitled to terminate the contract. In the interest of completeness, the Court went on to consider the reasonableness test as both the contract test and reasonableness test were raised by the Complainant In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. As set out above by the Court the evidence given by the Respondent’s witnesses supported the Complainant’s contention that there was a complete failure by the Respondent to carry out a fair and impartial investigation and to follow their own procedures. The Court determines that this failure constitutes unreasonable behaviour by the Respondent. The Court accepts the evidence of the Complainant that based on the behaviour of the Respondent she could not have any confidence in her grievance being addressed in a fair manner. This belief was supported by the fact that there was no appeal available to her in respect of the outcome of the disciplinary process and or the sanction imposed. Therefore, she did not engage with the Respondent’s grievance procedure prior to resigning. Determination
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