Complainant

Respondent

Parties

Sharon  Devine

Ann's Homecare  & Danu Homecare

Representatives

Mr A Turner / Michael O’Brien of UNITE the Union

Peter Dunlea of Peninsula Business Services

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00062506-001

29/03/2024

The issue in contention was the alleged Unfair Constructive Dismissal of the Complainant, a Home Care worker by the Respondent, a Home Care Services provider.

The employment began on the 16th May 2022 and ended on the 15th March 2024.

The rate of pay was stated by the Complainant to have been €1,382 per fortnight for 42-hour week.

The Complainant was represented by Mr A Turner.  Oral testimony was given supported by a comprehensive Written submission.

She had been a Home Care worker since May 2022. Things went well until 30th November 2023 when the Respondent employer wrote to all staff informing them of an Hours cut to 60 hours from a previous 84 hours. 

The Respondent stated that this was due to the HSE renegotiating the Home Care Agreement with the Respondent and reducing the hours required. There was no consultation with the Employee impacted by this cut in hours. The Complainant attempted to raise the issue via the internal Grievance Procedures but was ignored.

Eventually the Complainant felt that she had no choice but to resign (15th March 2024) and seek alternative employment.

As a side issue the Complainant was also aggrieved by the somewhat dismissive response of the Respondent to storm / high wind damage to her car incurred while travelling between clients in late January 2024

The Respondent was represented by Mr Dunlea. Oral testimony was given by Ms. S, a Regional Manager. A comprehensive Written Submission was provided in support.

The Respondent stated that they were effectively almost wholly funded by the HSE as regards Home Care packages. The HSE had, in October 2023, introduced new Terms to the Contract - effectively a reduction in hours. The Respondent could not financially sustain the existing situation and had no choice but to cut the Hours of the Home Care staff.

There was nothing personal as regards the Complainant as all staff were in a similar situation.

The matter had been subject to a WRC Conciliation process in the Summer of 2024. If the Individual grievance of the Complainant, on the same identical topic had been overlooked, it was largely due to the fact that the WRC Conciliation process was underway. The Respondent pointed out that the Complainant had contacted then in the Summe of 2024 seeking to return to work for them. Unfortunately, they had no work, at that time, in the Geographic area sought by the Complainant. Alternatives close by were offered but declined.

The Respondent observed that the obvious desire of the Complainant to return some two months post resignation was hardly the action of a disgruntled or upset employee.

Mr Dunlea set out the standard Legal tests for a Constructive Dismissal claim. 

No case for Constructive Dismissal could possibly arise.

3:1       The Legal positon.

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 [1978] 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 [2009] 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, [2008] 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 [2002] 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 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.

Not withstanding the above Legal discussion all cases rest finally on their own merits and evidence presented.

The “Tests” of Fundamental Breach of Contract, Unreasonable Behaviours & Use/Non-Use of Internal Procedures can be employed to review the facts of the case.

3:1:1        First Test - Fundamental Breach of the Employment contract.

In the case law a Breach has to be “Fundamental” i.e. going to the very root of the contract – an example would be a complete refusal to pay any wages at all. Nothing of this nature occurred here. The contract remained as was save for an external change imposed by the HSE, effectively outside of either Parties control.

In an employment law context this is not a situation of a Breach of the Employment contact occasioned by the Employer. It does not support a Constructive Dismissal case.

3:1:2       Second Test – Unreasonable Behaviours by either side.

The legal precedents quoted above require Unreasonable Behaviours to be really “unreasonable” -so completely and totally bad - such that no normal person could continue in employment in the situation.

Nothing of this nature happen ed in this case. As the Respondent noted the Complainant was quite anxious to return to work for the Respondent in the Summer of 2024.

As a Constructive Dismissal Test it does not support a Dismissal case.

3:1:3       Third Test -Use / Non-Use of Procedures

Here the issue was that the Complainant had lodged a personal Grievance on a matter that the Union was actively negotiating at the WRC Conciliation Service. Any slow response from the Respondent has to be seen in this light.

As a Constructive Dismissal Test it is at best neutral between the Parties.

3:2          Adjudicator Summary Conclusions

The standard Constructive Dismissal Tests as set out above do not support the Complainant’s case.

It cannot be said that a proper case of Constructive Dismissal has been properly made out.

Constructive Unfair Dismissal.