Complainant

Respondent

Parties

Helen  Byrne

Mr Trevor Hayes The Women's Health Group

Representatives

Yvonne Blanchfield

Paul Mc Glynn HRS Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00063958-001

07/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00063958-002

07/06/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00063958-003

07/06/2024

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

CA-00063958-004

07/06/2024

The Complainant alleges she was constructively dismissed from her employment and that she did not receive her written terms in accordance with the act. The Respondent disputes the claims.

The Complainant commenced employment with the Respondent's private clinic on 19 April 2022. Prior to this, she had worked with the Respondent in his public practice, where she was employed by the HSE for 16 years. Over the years, the Respondent had repeatedly asked her to join his private practice, eventually offering her a three-day workweek along with a salary increase. At the time, her husband was unwell, and the offer allowed her more flexibility to spend time at home. Given the good working relationship she had with the Respondent, she accepted the offer.

Upon accepting the role, she was given a contract; however, she was instructed to fill in her own hours, job title, and salary. She found this confusing and did not know how to complete it. At that point, she was working approximately 50 hours per week due to staffing shortages, but she knew she couldn’t accurately reflect that in the contract. The Respondent, Mr. Hayes, told her their relationship was strong enough that they didn’t need a formal contract.

The Complainant worked alongside Ms. Gráinne Dorney, who handled the antenatal side of the practice. Later, Ms. Regina Cleere returned from maternity leave and resumed clerical duties. The workplace was extremely busy, and in the beginning, the Complainant had a positive relationship with all her colleagues. However, things changed following Ms. Cleere’s return. The Complainant began to feel excluded — for example, she was left out of coffee runs and felt that colleagues were whispering about her. She was also excluded from events like the Chamber of Commerce Awards.

An Emsella chair was purchased without her input, and she felt side lined in the decision-making process. She raised these concerns with Mr. Hayes, who dismissed them, saying the others were simply jealous of her.

Subsequently, Mr. Dorney (Ms. Dorney’s husband) allegedly made comments to Mr. Hayes' wife, suggesting that the Complainant and Mr. Hayes had an inappropriate relationship. This upset the Complainant deeply. She confronted Mr. Hayes about the allegations, but he told her to take no action. Although Mr. McGlynn sent her the grievance policy, she did not pursue the matter because Mr. Hayes asked her not to.

The Respondent denied that any of this occurred and claimed it was all in the Complainant’s imagination. The Complainant maintained that she raised the issue at the time and also contacted Mr. McGlynn about it. Mr. Hayes himself was the one who informed her of the allegation, although she does not know who originally told him.

At one point, the Respondent asked the Complainant if she had assaulted Mr. Hayes. She categorically denied this.

The exclusion at work continued. She was left out of promotional offers and was unaware when customers called asking about them. She emailed Mr. McGlynn for help. Mr. Hayes even assisted her in composing the email. Her main concerns were poor communication and issues around cross-cover. A meeting was held in February to address these issues, but it was unproductive. Mr. Hayes was invited to attend but did not show up, and no improvements followed.

On 13 March 2024, Mr. McGlynn outlined workplace procedures in an email to the Complainant. She again raised her concerns with Mr. Hayes, who told her to ignore the co-workers causing distress and just focus on her job. He advised her not to file any formal or informal complaints.

The situation with the Emsella chair escalated. Despite assurances from Mr. Hayes that the chair would not be placed in her office, her workspace was moved during office renovations, and she found herself relocated to an uncomfortable spot near printers and a door, making it difficult to work. Mr. Hayes asked her to endure it for two weeks. Later, he told her the chair would remain in her office and would only be used when she wasn’t present. However, her desk was never reinstated.

While on annual leave, she emailed Mr. Hayes on 15 April seeking an update. She was told nothing would be decided without her input. However, upon returning from leave, it was clear she would not be getting her office back. She attempted to speak with Mr. Glynn, but he had an emergency. She later spoke to him by phone, and he said someone would reach out to propose a compromise. She followed up with Mr. McGlynn, who called her several times over the following days. She told him she could not continue working in her current setup and needed a resolution.

Mr. McGlynn later proposed that she rotate between locations: working every second Monday in Carlow, every second Thursday in Airfield, use Mr. Hayes' office on Wednesdays, and her own office on Thursdays. She accepted the proposal. However, the Respondent claims she failed to turn up on Wednesday, 24 April. Mr. Hayes testified he was waiting for her at the office, but later stated he had been operating in Kilkenny that day and was unaware of her absence or the sick certificate she submitted.

The Complainant stated that she emailed at 15:46 on 24 April requesting clarity on the working arrangement, and shortly afterward submitted a medical certificate confirming her unfitness for work for two weeks. While on sick leave, she inquired about the status of the work proposal and was informed that the offer was no longer available.

Each April, the Complainant applied to extend her HSE career break. In 2024, she discussed it with Mr. Hayes, who encouraged her to continue working in his private practice. She renewed her break. However, shortly after, matters deteriorated.

On 8 May 2024, a second offer was made via email from Mr. McGlynn: she could work from home every second Monday, work late clinics on Tuesday and Wednesday nights, work in Wakefield on Thursdays, and do two Saturdays per month. She accepted and obtained a return-to-work certificate from her GP, which she sent to Mr. McGlynn. He responded that he was awaiting confirmation from Mr. Hayes. She followed up on Monday, 13 May, but received no response. When she called, Mr. McGlynn stated he was still waiting to hear from Mr. Hayes.

Mr. McGlynn then asked whether she still wished to proceed with her complaints. She confirmed that she did, having emailed him on 7 May 2024 to formally initiate the process. At that point, Mr. McGlynn indicated he would have to recuse himself from dealing with her complaints. She was then informed that the second job offer had been rescinded and that she was being placed on “authorised unpaid leave” from 9 May.

As a result, she applied to return to the HSE, despite a moratorium being in place at the time. Financial necessity compelled her, as she was the sole earner at home. She was offered a position and returned to the HSE on 10 June 2024. She resigned from the Respondent’s practice on 6 June 2024, stating she had no choice due to the rescinded job offers and being placed on unpaid leave. She could not survive without an income.

The Respondent is a consultant obstetrician and gynaecologist. The Complainant worked for the Respondent in his public practice for thirteen years before transitioning to his private practice. The Complainant stated that she was repeatedly asked by Mr. Hayes (14 or 15 times) to come and work for him. However, Mr. Hayes denied this, stating that he asked her several times—around 4 or 5 times—but did not hound her.

Regarding the Complainant’s contract, the Respondent believed that she was given a contract and had signed it. Mr. McGlynn was responsible for handling the contract, and Mr. Hayes was unaware that the contract was blank. While Mr. Hayes did discuss salary matters with the Complainant and advised her to speak to his accountant, he heard nothing further about the contract. The Complainant alleged that Mr. Hayes told her there was no need for a contract, but Mr. Hayes denied this. The Complainant never raised any concerns about non-payment of wages during her employment. Mr. Hayes expected that if there had been an issue with her hours or pay, she would have raised it at the time. The first Mr. Hayes heard about any issues was when the claim was filed.

On December 21, 2023, the Complainant sent an email to Mr. McGlynn about problems in the office. Mr. McGlynn asked him to arrange a meeting with the other staff, but Mr. Hayes did not get involved. He did, however, speak with the Complainant when he saw her upset in the office. He advised her to ignore the other girls and focus on her work. He did not suggest that the others were jealous of her.

Mr. Hayes denied that Adrian Dorney told his wife about the Complainant and him being too close. He also stated that he did not inform the Complainant of any comments by Mr. Hacket regarding favouritism. The Respondent was unsure of how the Complainant learned of such statemen.

The Complainant stated that she did not have a formal job title. In the public sector, she was Mr. Hayes' Personal Assistant, while in the Whitfield and Carlow clinics, she was the Business Manager. She clarified that she was never the Practice Manager. During a conversation in December 2023, she allegedly assaulted Mr. Hayes. While Mr. Hayes did not report the incident, he was aware that he had six years to bring a complaint, though he questioned whether he should.

Mr. Hayes explained that while the Complainant was his PA and manager, she was not in charge of the unit—he was. The Complainant stated she worked 50 hours a week and was paid €50,000 as agreed, with no issues regarding her salary.

The Complainant had raised issues about her colleagues. However, Mr. Hayes told her that he would not get involved in conflicts between the staff.

Regarding the rumours about Mr. Hayes and the Complainant being too close, Mr. Hayes denied these claims, stating there was no affair. He also denied any allegations of favouritism.

In February 2024, Mr. Hayes did not attend a meeting as advised by Mr. McGlynn, who felt his presence would hinder open discussion among the staff. There were issues about jealousy and territorialism between the staff that needed to be addressed.

Regarding holidays, Mr. Hayes explained that flexibility was essential, as in obstetrics, babies are born at any time of the day or year. If one staff member was on holiday, others had to fill in. The Complainant was primarily the one raising issues about this.

On the matter of the Emsella chair, Mr. Hayes had a meeting with three secretaries and decided to purchase the chair, believing it would benefit the business. While he did not require approval from staff, he did inform them out of courtesy. Under cross-examination, Mr. Hayes stated that no final decision had been made at the time of the initial discussion, as they needed to secure funding and marketing information. Once purchased, the chair had to be placed in the office and could not be moved. The Complainant had the option to use Mr. Hayes' office on Wednesdays and Fridays. She was also offered training for the chair.  She refused training on the chair and when asked she walked out, slamming the door. Mr. Hayes emphasized the need for flexibility regarding workstations. The reception desk had a rotation system, with enough space for three people to work.

The Complainant also stated that she was told by Ms. Dorney that Mr. Hayes had requested her workstation be moved. The Respondent was unsure if that conversation took place, but he was aware that her computer had been unplugged due to office refurb, preventing her from logging in. The Complainant took issue with this, claiming it was done without consultation, but Mr. Hayes disagreed, stating that all staff were willing to be flexible with their workstations. He also offered the Complainant full private use of his office on two days a week. What more could he do?

The Complainant claimed that when Regina returned from maternity leave, things changed among the staff. Mr. Hayes was aware of these changes but emphasized that he did not get involved in staff conflicts. He is a doctor, not an HR professional. Mr. Hayes acknowledged that a toxic environment existed in the office but was unaware of it at the time.

There was a patient who worked for HSE pensions, and after speaking with the Complainant, she advised that the Complainant should not be working while on sabbatical. This conversation led the Complainant to become worried, and Mr. Hayes advised her to inquire whether she could continue paying into her pension during her sabbatical.

The Complainant stated that she was placed in a corner and could not work there. However, Mr. Hayes argued that the desk rotations meant she was simply unwilling to work in the designated area, dismissing her complaint as an overreaction.

Mr. Hayes worked with the Complainant for thirteen years without issue, but tensions arose when she was asked to work with the other secretaries. The Complainant was not popular among the other staff members, and Mr. Hayes felt her behaviour was detrimental to the company. He was frustrated with her working hours and arrangements, especially her desire to work from home. Mr. Hayes had reached the point where he could no longer tolerate the situation, although he never discussed terminating her employment with Mr. McGlynn. Ultimately, the Complainant resigned.

On April 24, 2024, Mr. Hayes was informed that the Complainant did not show up for work. Later that evening, she submitted a sick certificate, which Mr. Hayes interpreted as playing "mind games." One of the staff informed him that she hadn’t arrived, and he was upset by this.

On April 23, at 3:27 pm, Mr. McGlynn emailed the Complainant with a proposal, which Mr. Hayes had authorized. The Complainant accepted the proposal, but Mr. Hayes rescinded it. He explained that he felt like the Complainant was in control of the situation and was calling the shots, and he would not tolerate that. He was the "Captain of the ship, not her"

Mr. Hayes acknowledged that he was aware the Complainant requested a face-to-face meeting with him on April 24, May 10, and May 15. He was fed up and did not want to continue engaging in the matter. Mr. Hayes also accepted that, on May 7, she again expressed a desire to have her issues addressed. On May 8, Mr. McGlynn sent an email (at 3:48 pm), and Mr. Hayes confirmed he had authorized the proposal, but later rescinded it.

Mr. Hayes admitted he was frustrated and tired of accommodating the Complainant, feeling that enough was enough. Since her departure, the workplace had returned to peace. He also confirmed that, due to the ongoing issues, he placed her on unpaid leave, which the Complainant argued was essentially a suspension. Mr. Hayes dismissed this as "just semantics."

The Complainant requested an update on her situation several times in early May, including on May 13, but Mr. Hayes did not recall Mr. McGlynn asking him for an update at that time. On May 15, she requested an update on wages and annual leave, at which point Mr. McGlynn informed her that relations with Mr. Hayes had broken down. The Complainant then emailed Mr. McGlynn, copying Mr. Hayes, asking for an explanation as to why he believed the relationship had broken down. Mr. Hayes acknowledged receiving the email but did not respond.

On June 6, 2024, the Complainant resigned.

CA00063958–001 – Withdrawn

CA00063958–002

The Complainant stated that she was provided with a blank employment contract and was asked to complete it herself. The Respondent was unable to refute this stating that he left those matters to Mr McGlynn and as far as he was concerned the matter had been dealt with.  Although there is no obligation under the Terms of Employment (Information) Act to issue a full employment contract, employers are legally required to provide employees with a written statement of terms under Section 3(1)(a)–(m) of the Act. This was not done in this case.

Accordingly, I find that the complaint is well-founded. I award the Complainant compensation equivalent to four weeks' pay, amounting to €5,784.60.

CA 00063958 – 003 – This claim I find was a duplication of claim 002 above.

CA 000 63958 – 004  - The claim is one of constructive Dismissal.

Section 1 of the Unfair Dismissal Act defines constructive dismissal, and that definition is appliable to constructive dismissals under the Industrial relations Acts. It is defined as:

“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 the 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”

The burden of proof, which is a very high one, lies on the Complainant. She must show that her resignation was not voluntary.  As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“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 further performance”

If I am not satisfied that the “contract” test has been proven, then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to him unless he can show that said remedies are unfair”

A significant portion of the evidence in this matter was in dispute. However, both parties agreed that the Complainant and the Respondent had enjoyed a very good working relationship for over 13 years. It was only after the Complainant moved into the Respondent’s private practice that issues began to arise.

The Complainant alleged that she encountered difficulties in the workplace, particularly with other employees of the Respondent. These issues included exclusion and the Respondent’s failure to address her complaints. Much of the evidence presented on these issues centred around the introduction of the Emsella chair and the subsequent reorganisation of the office. The Complainant also gave subjective evidence that she felt isolated and excluded.

It is evident from the record that the Respondent delegated the majority of responsibility for employee management and conflict resolution to his HR Manager, Mr. McGlynn. However, under cross-examination, the Respondent did concede that he spoke with the Complainant regarding her complaints and told her to “just ignore the girls and get on with her work.”

When the Complainant attempted to formalise her complaint via email on 8th May, this correspondence was ignored. I find—primarily based on the evidence of Mr. Hayes—that the Respondent relied on his longstanding relationship with the Complainant to discourage her from pursuing a formal grievance.

While there is much to be said about the Respondent’s handling—or lack thereof—of the Complainant’s complaints, the central issue in this case concerns Mr. Hayes’s statements and conduct. He admitted to being “fed up” with trying to accommodate the Complainant. He blamed her for rumours about an alleged affair, for the breakdown in staff relationships, and even for a decline in his own mental health. He further accused her of assault and ultimately stated that he had “just had enough of her.”

The Respondent accepted that two offers of resolution were made to the Complainant, both of which she accepted, and both of which were subsequently withdrawn. He also acknowledged that he authorised placing her on unpaid leave. When asked to distinguish between unpaid leave and unpaid suspension, he responded that it was "just semantics."

The Complainant was placed on unpaid leave—which, in effect, amounted to an unpaid suspension—despite the fact that no disciplinary process had been initiated. This occurred after she had attempted to formalise a workplace grievance, which was disregarded.

As Mr. Justice Noonan stated in The Governor and Company of the Bank of Ireland v Reilly [2015]IEHC 241:

The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future career. As noted by Kearns J. (as he then was) in Morgan v. Trinity College Dublin [2003] 3 I.R. 157, there are two types of suspension, holding and punitive. However, even a holding suspension can have consequences of the kind mentioned. Inevitably, speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. Even a holding suspension ought not be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process”.

In this case, there was no valid or justifiable reason to place the Complainant on unpaid leave, other than to force her out of her role. The Respondent was fully aware that the Complainant was the sole earner in her household and relied on her income. Placing her on unpaid leave without any investigation or disciplinary procedure was a serious breach of her rights and, more likely than not, caused damage to her professional reputation. It would also seem that there is a nexus between her attempting to initiate the grievance procedure and the placing her on unpaid leave. The Complainant was left with no choice but to leave her role in order to find paid employment elsewhere.

Having considered all of the circumstances, I find the Complainant’s claim to be well-founded. Compensation is the most appropriate remedy, particularly as the employment relationship has broken down irretrievably. The Complainant secured alternative employment with the HSE shortly after her departure, and therefore does not have an ongoing loss of earnings post-dismissal. However, she did suffer financial loss between the date she was placed on unpaid leave (8th May) and the date her employment ended (10th June).

Accordingly, I award the Complainant:

Four weeks' compensation in the sum of €5,784.60  and loss for the period from 8th May to 10th June in the sum of €6,507.67

CA-00063958-001 This complaint was withdrawn.

CA-00063958-002 The complaint is well founded. I award the Complainant €5,784.60

CA-00063958-003 The complaint is a duplicate of 002 above.

CA-00063958-004 The complaint is well founded. I award the Complainant €12,292.27

Constructive Dismissal. Unpaid leave. Hours of work. Terms of employment.