FULL RECOMMENDATION
PARTIES : HEALTH SERVICE EXECUTIVE DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: ADJ-00025868, CA-00032814-001. This is an appeal by Ms Jevgenija Loginova (‘the Complainant) from a decision of an Adjudication Officer (ADJ-00025868, dated 19 November 2020) under the Unfair Dismissals Act 1977 (‘the Act’). The Complainant’s Notice of Appeal was received on 4 December 2020. The Court heard the appeal in a virtual courtroom on 20 July 2022. Only the Complainant was called to give sworn evidence to the Court. Preliminary Application At the commencement of the hearing, the Complainant’s Union Representative made an application to the Court to have the within determination anonymised. The Representative for the Health Service Executive (‘the Respondent’) did not consent to the application. The Court considered the application and declines it for the following reasons. Section 44(1) of the Workplace Relations Act 2015, as substituted by section 8A(2) of the Unfair Dismissals Act 1977, provides “(1) (a) A party to a claim for redress under the Act of 1977 may appeal a decision of an adjudication officer given in relation to that claim to the Labour Court and, where the party does so, the Labour Court shall— (i) give the parties to the appeal an opportunity to be heard by it and to present to it any evidence relevant to the appeal, (ii) make a decision in relation to the appeal affirming, varying or setting aside the decision of the adjudication officer to which the appeal relates, and (iii) give the parties to the appeal a copy of that decision in writing. (b) A decision of the Labour Court under paragraph (a), may include an award of redress under section 7 of the Act of 1977.” Section 44(7) of the Workplace Relations Act 2015 provides: “(7) Proceedings under this section shall be conducted in public unless the Labour Court, upon the application of a party to the appeal, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.” In exercising its appellate function in employment rights matters, the Court is engaged in the administration of justice. Hence, the stipulation in section 44(7) mandating the Court to conduct such appeals in public other than in circumstances where it has determined, on the application of a party to an appeal, that special circumstances apply that justify hearing the appeal in question “otherwise than in public”. The Court heard the entirety of the within appeal in a public setting. No application was made to the Court to conduct the hearing “otherwise than in public”. The Court’s written determination that issues following the conclusion of a hearing is, likewise, an aspect of the administration of justice and it follows that there cannot be any basis for anonymising any part of it or the names of the Parties thereto save perhaps where the Court has previously determined that special circumstances apply that justify hearing the appeal ‘otherwise than in public’. The Factual Matrix There is no dispute between the Parties in relation to the key facts relevant to the within appeal. The Complainant resigned her employment as a Health Care Assistant with the Respondent on 23 July 2019. Her employment in that capacity had commenced on 25 July 2005. The Complainant commenced a period of sick leave, from which she never returned, in October 2018. She submitted medical certificates advising that she was suffering from work-related stress at that time. She received the full benefit of the Respondent’s sick pay scheme following which, in February 2019, she availed herself of Temporary Rehabilitation Payment until the date of her resignation. On 5 February 2019, the Respondent received a medical report from the Complainant’s General Practitioner that stated that the Complainant felt she was being bullied by staff and management in her place of work. The Assistant Director of Nursing (‘the ADON’) with responsibility for that location replied to the Complainant that same day, enclosing a copy of the Respondent’s Dignity at Work Policy. The ADON also invited the Complainant to revert if she wished to pursue a complaint under the Policy. On 21 February 2019, the Complainant submitted a written complaint to the Respondent. The complaint ran to six pages. The Complainant made reference to her concerns that some of her co-workers were not fulfilling their duties adequately or at all. She said she had raised those concerns at a meeting and that her situation in the workplace had deteriorated as a consequence. She referred to an incident where a named male co-worker approached her from behind and made fun of her by touching her ears and pretending to kiss them. The Complainant’s letter of complaint also referred to a named female colleague whom she said repeatedly called her by her name out loud for no reason. Thirdly, she named a staff nurse who she said was given to making sexual gestures and simulating pole dancing movements in the presence of patients. Finally, she complained about how the roster was compiled. The Complainant was invited by management to attend a meeting on 11 March 2019 to discuss the contents of her letter of complainant. Prior to this meeting, management met with the individuals named in that letter to canvass their views on the matters the Complainant had raised. The Complainant was accompanied by her partner at the meeting on 11 March 2019. Two ADONs also attended from the management side. The minutes of that meeting which were furnished to the Complainant indicate that management explained to the Complainant that she could choose to have her complaint dealt with either informally or by means of a formal investigation and that they would follow up with her through her partner on the following Thursday to see what her decision was in relation to how she wished to proceed to have her complaint dealt with. The Complainant confirmed on 26 March 2019 that her choice was to proceed to have her complaint formally investigated. The Complainant’s complaint was referred on 28 May 2019 to the Respondent’s Regional Human Resources Headquarters in Kells. The designated officer assigned to deal with the matter reverted on 4 June 2019 seeking further clarity in relation to the complaint. The Director of Nursing (‘the DON’) wrote to the Complainant on 6 June 2019 requesting additional clarification. The DON also telephoned the Complainant on 26 June 2019 and followed up again with a further letter on that same date and again by email dated 15 July 2019. No further detail or clarification in relation to her complaint was furnished by the Complainant in response to the correspondence from the DON. In a very brief email dated 23 July 2019, comprising one single sentence, the Complainant informed the DON that she had decided to resign her employment “because of the unbearable situations (sic)” she had experienced in her place of work. The interim DON, by letter dated, 9 August 2019 advised the Complainant to delay any final decision about resigning her employment and offered to meet with the Complainant on 20 August 2019 or on another suitable date to discuss matters with her. The interim DON repeated her offer of a meeting in a letter dated 27 August 2019 and again on 25 September 2019. The Respondent received a completed Form HR106 from the Complainant on 4 November 2019. The Complainant’s complaint of constructive unfair dismissal was received by the Workplace Relations Commission on 9 December 2019. Her case was heard by an Adjudication Officer on 7 October 2020 who decided that the complaint was not well-founded. The Complainant’s Evidence The Complainant briefly outlined her duties as a Health Care Assistant. She told the Court that she went out on sick leave in October 2018 because she was physically and emotionally tired because of the situation she had been experiencing in her place of work. According to the Complainant, she was constantly covering for colleagues who were not doing their fair share of work while at the same time she was the target of bullying behaviour by her colleagues. She then referred to the written complaint she submitted to the Respondent in February 2019 which she said took her two months to compile. Her evidence then moved to the subsequent meeting with management on 11 March 2019 during which, she says, she again repeated her complaints about the rostering arrangements that had been in place prior to her departure on sick leave. The Complainant said she learned to her surprise at this meeting that management had spoken to the individuals she had named in her letter of complaint without prior notice to her and that this caused her to lose trust and confidence in management. She told the Court that as a result she felt she was left with no option but to go with a formal investigation of her complaint. The Complainant referred to the various requests she had received from the Respondent seeking further clarification of her complaint and the identity of the alleged perpetrators. She told the Court that she did not provide the clarification requested of her as she believed she had provided sufficient detail in her original complaint. When asked what the reason for her resignation on 23 July 2019 was, the Complainant told the Court that she had lost all trust in the Respondent by this time and could not consider working again under the same management as a result of the delay in investigating her complaint. Neither could she contemplate a transfer of her employment to another location. She also said that she needed time to recover her health. When asked about her efforts to mitigate her loss in the period following her resignation, the Complainant told the Court that she is still recovering from the effects of what had happened to her in the workplace and is not able to be around people. She said that she had applied for numerous jobs online but was not able to furnish the Court with any specifics in this regard and did not have any supporting documentation before the Court. In direct evidence, she said she had been unable to secure a position that she had interviewed for because she was unable to furnish the prospective employer with a reference from the Respondent. Under cross-examination, she confirmed that she had never requested a reference from the Respondent. She also said that had successfully trained as a bio-energy therapist and had set up her own business in this area but this had collapsed because of the pandemic. She told the Court that she had been in receipt of Illness Benefit until November 2020. Under cross-examination, the Complainant told the Court that she had left her residence in Dublin and had moved to Galway in order to avoid any potential contact with her former work colleagues. She said that she did not respond to the DON’s telephone call to her in late June 2019 because she was on two weeks’ holidays at that time. It was put to her that the Respondent had offered her the option of transferring to two alternative locations and she had declined both offers. She accepted that was the case and said that neither was suitable to her and she would not be comfortable working with the staff in either location. When asked why she hadn’t provided the additional clarifications requested of her about her original complaint in June 2019, the Complainant said that she had sought assistance from her trade union in or around this time and it hadn’t been forthcoming. The Complainant was asked about the letter dated 9 August 2019 from the interim DON in which the latter requested her to reconsider her resignation and offered to meet with her. Initially, the Complainant denied receiving this letter. She changed her position when it was pointed out to her that she had, in fact, replied to it by email dated 19 August 2019 in which she simply stated, without explanation, that she would not be attending the meeting with the DON on the following day. The Complainant told the Court that she declined to attend the meeting because she could not get anybody from the Union to accompany her. Nevertheless, she then went on to say – in response to a further question from the Court – that her union had advised her to re-engage with management. The Law The term ‘constructive dismissal’ does not occur in the 1977 Act. However, part (b) of the definition of ‘dismissal’ that is included in section 1 of the Act states: “’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”. This part of the definition of ‘dismissal’ is an acknowledgment by the legislature that there may be circumstances in which it is reasonable for an employee to resign from his or her employment, with or without notice, where his/her employer has committed a fundamental breach of the contract or has otherwise conducted itself unreasonably vis-á-vis the employee. A considerable body of case law has developed in this jurisdiction around the concept of constructive unfair dismissal since the enactment of the 1977 Act. Both the Employment Appeals Tribunal and this Court have consistently stated in their determinations in cases of this nature that an employee is required to act reasonably before resigning their employment with a view to proceeding against their former employer in an action for constructive dismissal. An employee, is therefore, normally expected to be able to demonstrate in proceedings that they first brought their concerns to the employer’s attention before resigning and gave the employer a reasonable opportunity to address those concerns. The employer is expected to demonstrate, in turn, that it did respond in a reasonable manner. The Parties’ Submissions It is submitted on the Complainant’s behalf in this appeal that she had referred a complaint of bullying and harassment to the Respondent and the Respondent did not respond appropriately or in a timely fashion to her complaint with the result that she was justified in losing trust and confidence in the Respondent and resigning her employment. The Respondent, in its defence, submits that it acted at all times in accordance with its Dignity at Work Policy and that it requested the Complainant on several occasions to reconsider her decision to resign having sought to reassure her on each occasion that her complaints would be fully investigated once she provided the necessary clarifications sought from her. In summary, the Respondent submits that it conducted itself reasonably and fairly at all material times when dealing with the Complainant. Discussion and Decision The Complainant has provided no meaningful explanation to the Court to justify her refusal on several occasions to provide the Respondent the clarification it sought to enable it to progress a formal investigation into the complaints of bullying by her co-workers initially outlined in her letter of 21 February 2019. Contrary to advices from her own Trade Union Representatives she refused to engage with management and decided to resign her employment on 23 July 2019. The Respondent urged her to reconsider, on several occasions, and offered to redeploy her elsewhere. The Complainant rejected these offers and declined to reconsider her decision to resign. In the light of the evidence before it, the Court finds that the Complainant’s decision to resign her employment cannot be characterised as a reasonable response to the Respondent’s handling of her complaints. Therefore, her complaint of constructive unfair dismissal is not made out. The appeal fails and the decision of the Adjudication Officer is upheld. The Court so determines.
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