ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00034341
A Nursing Home
Niamh Ní Cheallaigh of IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 05/05/2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
In accordance with Section 13 of the Industrial Relations Acts 1969 following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.
Full cross examination of Witnesses was allowed and availed of.
Unfortunately, due to Covid 19 difficulties, the publication of the Adjudication finding was delayed.
The dispute in question concerns the alleged Constructive Dismissal of a Worker, A Chef, by a Nursing Home.
The Worker alleged that the working conditions in the Home had become intolerable, he was not paid the correct rate for Bank Holidays, not given proper Tools and Harassed by repeated contacts during his Paternity Leave. He was forced to resign.
The rate of pay was €2,500 per month
The employment began on the 12th October 2020 and ended on the 20th July 2021.
1: Summary of Worker’s Case:
The Worker gave a lengthy Oral testimony. He had accepted the position on an understanding that he would get a Salary Increase after his first six months work. This never happened.
His initial working pattern was a straight run through of 8 or 9 days followed by a weekend off. On becoming a parent later in the year, he had requested more weekend time off. A Part-Time Chef was also employed as cover. However, in discussions with Ms. AB, the Manager, it proved impossible to reach an agreement on extra weekends. It became a constant source of friction.
The Kitchens lacked proper equipment and securing new or replacement equipment was very difficult as communications with Management seemed to disappear into the e mail ether. Decision making authority was in Donegal, far removed from his place of work in the Midlands and out of touch from the day to day situation he faced.
There was a severe shortage of staff and many issues arose with Residents where he had to intervene. He became in effect the “De facto” Home Manager. The actual manager, Ms AB, generally did not venture out of her office and the staff began to bring all issues to him. This was not part of his remit as a Chef. Issues of Patient Care also came to him which was certainly not part of his job description. During his Paternity Leave, which he understood to be a period of special family time, he had been repeatedly contacted by Ms. AB over operational issues.
He had lost all confidence in the Home and or Company Managerial structure. He had not lodged a grievance under the Policy as he felt it would have been a complete waste of time.
Likewise, he acknowledged that the higher Managers had contacted him post his resignation letter (26th July 2021) to effectively ask him to change his mind. However he had considered matters carefully and simply wanted out of the job. He had lost all faith in Management. He had reluctantly felt his only real option, to save his mental health and general wellbeing, was to resign. He was forced out. His resignation was a clear case of Constructive Dismissal.
2: Summary of Employer’s Case:
The Employer gave a detailed Written Submission supported by Oral Testimony from Managers.
The allegations made by the Worker in his submission were completely denied. He had met with Ms. AB, the director of Nursing on the 20th of July 2021. He was very unhappy with his roster pattern and told her he was resigning. He repeated this to Mr JD, the Ops/Compliance Manager, the same day. The HR Manager, Ms.S. McL set up a Zoom Meeting for the 21st July with the Regional Manager, Ms.N, and herself. A lengthy list of issues of concern was raised by the Worker. Ms M undertook to immediately look into these issues. Ms. McL identified the Grievance Policy as a suitable vehicle and gave the Worker a Copy. The Worker replied that he was resigning and would not be coming back to the home. He was asked to reconsider his decision but on the 26th July 2021 he confirmed again to Ms. McL that his decision was unchanged.
He did not make or lodge any formal Grievance on any of his issues of concern.
The Employer Representative, while pointing out (due to short employment service) that the Dispute was under the Industrial Relations Act,1969 nevertheless referred to the three standard Tests for Constructive Dismissal. These were Breach of Contract, Unreasonable Behaviours and failure to Utilise Procedures prior to a Resignation.
Om all these grounds the Worker fails to make a strong case. Legal Precedents (Conway v Ulster Bank .UD474/1981 and McCormack Dunnes Stores UD 1421/2008) quoted by the Employer Representative clearly stated that breaches of Contract and Unreasonable Behaviours had to be “egregious” i.e. so bad that no “reasonable” person could be expected to put up with them.
The Contract of Employment had not been broken in any material way and the allegations of Employer Unreasonable Behaviours so bad as to justify a resignation lacked any real evidence. It was a Nursing home with some 40 or more staff and of course there would be normal issues with the Chef. However, nothing that could be called “Unreasonable” as understood by past Legal precedent had arisen. Contacts during his Paternity leave had been of a minor nature related to staff rosters and could not have been characterised as unnecessarily intrusive.
In addition, the Worker had not availed of the grievance procedures despite having had them brought to his attention. Citing Legal precedent (Travers v MBNA Ireland UD720/2006) this failure to use the Grievance Procedures was in itself fatal to his Unfair Dismissal claim.
In final summary the Employer stated that he claim for Constructive Dismissal lacked all legal or practical foundations and had to be set side.
Oral testimony was given by Ms. McL, the HR Manager. She detailed her efforts to get the Worker to reconsider his decision and had suggested the Grievance Procedure. Good Chefs, such as the Worker, were in very short supply and the Employer had absolutely no agenda to remove or dismiss him. His complaints would have been addressed quickly. He had pre-empted all Management efforts to address his concerns.
3: Findings and Conclusions:
3:1 The Relevant Law.
The Unfair Dismissal Act,1977, the Constructive Dismissals “Tests”, the issue of the use of Procedures prior to a Resignation and the body of Legal precedents.
In relation to Constructive Dismissal the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.
For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:
“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,…”
As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp  1 All E.R. 713. It comprises of two limbs, 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.”
According to the Irish Supreme Court in Berber -v- Dunnes Stores  E.L.R. 61:
“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.”
Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.
Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House,  E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):
“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”
However, a certain degree of Legal caution is required here.
In the case of Allen v Independent Newspapers, IR  E.L.R. 84 the claimant, resigned her position. She alleged that she had been constructively dismissed in that the conduct of her employer and the treatment of her and attitude towards her left no choice but to terminate her employment.
The Employment Appeals Tribunal, however, was satisfied that at various stages throughout her employment and more particularly in September 2000, the claimant brought her complaints to senior management level within the respondent newspaper. Overall, the Tribunal considered that it was reasonable for the claimant to take into consideration the manner in which her various complaints were dealt with during 1999 and 2000 in arriving at her conclusion that she had essentially lost faith in what was being offered by way of investigation by the Employer / Respondent in September 2000.
She was entitled to do so because the EAT accepted that she had cause for complaint after June 2000. The Tribunal therefore accepted the claimant’s assertion that she could have no confidence in the respondent to address her grievances either properly or effectively and that such was a reasonable conclusion in all the circumstances. Furthermore, the claimant did not act unreasonably in taking into consideration the likely effect on her health and wellbeing were she to remain in the work environment. She had communicated her concerns about her health to her employer. The tribunal, however, considered that this was a constructive dismissal and stated that
“the respondent company acted unreasonably in its dealings with the claimant and she became frustrated, leaving her with no option but to resign”.
In summary therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.
None the less and taking due cognisance of the Legal points made above, all cases rests on their own evidence, facts and circumstances. These will be considered next.
3:2 Consideration of the Oral Evidence presented and Written Submissions.
To consider the materials it is useful to use the “Tests” set out above for Constructive Dismissal
3:2:1 Test One / Breach of Employment Contract by either side so bad as to justify a resignation
The breach of employment contract in cases of this nature has to be of a very serious nature - an example would be the stopping of a Workers wages or asking a worker to perform duties completely outside of his area of work – asking the Accountant to sweep the yard would be an example.
In this case and having heard the Oral testimony of the Worker, it was hard to see any major breaches of the employment contract. The differences of opinion over weekend working rosters, the difficulties over requisitioning kitchen equipment, the alleged “de facto “Managerial” role vis a vis the Dining room and general communication issues, (including calls during his Paternity Leave,) with Ms AB, the Director of Nursing were serious and clearly irritating to the Worker.
However, they could not, to an outside reasonable observer or in this case an Adjudicator really qualify as “major breaches of the employment contract” so serious as to justify a resignation.
The first Constructive Dismissal Test is not supportive of the Worker.
3:2:2 Test Two – Unreasonable Behaviours by either side
Again having listened to the Oral Evidence and read the written submission there was nothing that to an outside observer or Adjudicator could be described as “Unreasonable” . Certainly there were difficulties in communications with Ms.AB. The Head Office being in Donegal ( workplace was in the Midlands) and the Covid restrictions certainly did not help with communications but overall it was hard to see “Unreasonable Behaviours” so bad a to justify a resignation.
Test Two does not favour he Worker.
3:2:3 Test Three : Full use of Procedures/Raising of Grievances prior to resigning.
The Worker clearly did not lodge any formal Grievances despite being advised to do so by Management personnel. The time line of communications indicated that he first told Ms AB, on the 20th July that he “no longer wished to work with the Company”. This was confirmed with the Operations Manager , Mr. D , the same day . Following a Zoom Call on the 21st July he confirmed his resignation on the 26th July 2021. No formal Procedures were invoked by the Worker.
Test Number Three does not favour the Worker.
3:3 Adjudication Summary
Arguing a Constructive Dismissal case is a difficult situation. All legal precedents point this out. the Labour Court has stated on many occasions that “the Bar is High”.
In this case the Three tests do not favour the Worker and the Adjudication conclusion has to be that a Constructive Dismissal did not take place.
The Worker’s claim has to fail.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
No Constructive Dismissal, as understood by Law, took place.
The Recommendation is that the Employer position of No Constructive Dismissal be supported.
Dated: 16th September 2022
Workplace Relations Commission Adjudication Officer: Michael McEntee
Constructive Dismissal, Industrial Relations Act.