ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00029252

Parties:

	Complainant	Respondent
Parties	Rachel Sweeney/ Ennis	Health Service Executive

Representatives

McDonald Solicitors

Liam O’Connell BL instructed by Hilda Clare O’Shea Solicitor

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00039026-001	04/08/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00039026-002	04/08/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00039026-003	04/08/2020

Date of Adjudication Hearing: 03/07/2023, 12/12/24, 21/07/2025

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. Where submissions from parties were received they were exchanged. The complainant gave evidence under oath and Ms Patricia Conway Night Assistant Director of Nursing and Mr Edward Long HR Manager gave evidence under affirmation and Ms Jennifer Power Assistant Director of Nursing gave evidence under oath.

Background:

The complainant submits that she was penalized and that she was unfairly dismissed.

The complainant commenced employment on 01/10/2002 and sent a letter of resignation dated 14/07/2020 and submits that a constructive dismissal arises and that she was penalised for reporting of a health and safety matter and the respondent refutes the complaints. Submissions and documentation refers to the complainant as sometimes Ms Sweeney and sometimes Ms Ennis and sometimes Ms Sweeney Ennis.

Summary of Complainant’s Case: CA-00039026-001

The complainant commenced employment on or about 01/10/2002 as a health care assistant paid a gross weekly of €673.07. The Complainant resigned on 14/07/2020. The complainant submits that she was penalised when she injured her leg at work and that she suffered a detriment such that the respondent imposed a disciplinary/investigatory procedure against her. The complaint was received by the WRC on 04/08/2020.

The complainant worked 19.5 hours per week and matters were uneventful for a considerable period of time until the Complainant, who had been morbidly obese lost a considerable amount of weight and injured her leg at work and thereafter up to the date of 14/07/2020 had a considerable amount of sick leave due to health problems. From in or about 27/05/2020 the Complainant was absent on work related stress until termination of her contract on 14/07/2020.

Following her work related injury to her leg of 09/02/2016 the Complainant noticed that she was being treated differently and in an unfavourable manner; inter alia it was said to her that she, herself, had cut her leg, the manner in which the respondent dealt with her sick leave absences and in particular the manner in which the sick leave pay policy was implemented towards her. Following her leg injury and weight loss, the Complainant was called to a meeting at which it was inferred that she had an eating disorder. Several meetings followed and it was put to the Complainant that nurses and other staff reported that the Complainant was not going to the canteen for lunch and she was questioned about this. leaving the Complainant feeling intimidated at the meetings. As noted above, these meeting were ongoing, one after the other, and as a result the Complainant felt bullied and upset and could not stand up for herself. The said unfavourable treatment of the Complainant came to a head 04/03/2020 when the Respondent imposed the Disciplinary Procedure against the Complainant and requested the attendance of the Complainant at a Disciplinary Hearing. The Complainant was required to attend the Disciplinary Hearing without being involved in the investigatory stage.

The letter of 04/03/2020 clearly shows that the Respondent had predetermined that conduct and it is not stated what the said alleged conduct is and it transpired the alleged conduct was not work related. On 21/04/2020 the Complainant received a letter from the Respondent informing her that the disciplinary hearing had been deferred due to Covid restrictions. She was also told that the original notice of the disciplinary hearing was sent to the Complainant by registered post on 06/04/2020 but had been returned. It is reiterated that at this time the Complainant had not taken part in an investigatory meeting and was unaware of the subject matter of the disciplinary hearing.

On 22/05/2020, the Complainant was called into an informal meeting by way of an email from Mr Edward Long. It is reiterated the said email did not outline what was to be discussed at the meeting. At the meeting the Complainant was informed that a prescription given to her by Dr A, in Outpatients Dept. of Wexford General Hospital, on 25/04/2020 had been falsified and was being used to obtain painkillers illegally in a pharmacy in a town. The Complainant was informed by the Gardai that the said prescription had an extra item added to it, and that it had been dispensed at two Pharmacies on 21/05/2020. The Complainant says she attended Doctor A and was given a prescription for two items, and that she handed the said prescription back to the doctor as she is allergic to one of the drugs prescribed and she had a sufficient amount of the other drug, being a painkiller.

On 27/05/2020 the Complainant emailed Mr Long informing him how stressful it was, how damaging it was for her good family name, stated there had been a breach of confidentiality and her name was the centre of malicious talk and rumours. This breach of confidentiality affected the Complainant to the extent that it caused her employment with the Respondent to become untenable. As a result of matters the Complainant attended with a counsellor from occupational health, followed up with a visit to her GP who advised taking stress leave until the Complainant felt she had the confidence to resume work and the Complainant suffered a damaging effect to her mental health. A letter dated 02/06/2020 advised the Complainant from the Respondent that there would be no further disciplinary action and that the Gardaí had been informed. Gardaí called to the complainant and she was asked to attend at the Garda Station where she was arrested and questioned. No further action has been taken against the Complainant by An Garda Siochána.

On 25/06/2020 the Respondent wrote to the Complainant advising her to attend a work assessment including with Ms Power and wrote advising that her absence was being recorded as “absent without leave” as her last medical cert was up to 12/06/2020, despite the complainant advising on 18/06/2020 by telephone that further certs would be issued. On 14/07/2020 the Complainant wrote to the Respondent informing the Respondent:-

“I refer to recent events, in particular the disciplinary process which was commenced against me and which currently stands adjourned. These stalling of this process and other recent matters have left me feeling I have no option but to resign. I consider this resignation a constructive dismissal and which said dismissal is unfair. actions have left me feeling I cannot continue. I have considered referring a grievance regarding the events complained of but feel that the duty of trust and confidence has been breached to such an extent that I would have no faith in same.”

The respondent emailed on 21/07/2020 inviting her to reconsider her decision to resign and asking her was she willing to engage with the HR Manager on same and on 30/07/2020 the Respondent again wrote to the Complainant asking her reconsider her decision to resign and stating that Mr Edward Long, was available to meet with her to address her concerns and reminding her of the availability of counselling and support services of the HSE. The Complainant responded thanking the Respondent for the opportunity to reconsider her decision to resign and advising that she had already informed the Respondent that she will not be in attendance at the meeting scheduled for August 2020. On 04/08/2020 solicitors for the Complainant responded to the said letter dated 29/07/2020 as follows:-

“We understand that our client has resigned and considers same a constructive unfair dismissal. We further understand that you have asked our client to reconsider the matter. Regretfully this is not a viable option for our client taking into account recent events. against her was not a work related matter and accordingly the said procedure was incorrectly invoked against her.”

It is the complainant’s position that the respondent sought to invoke a disciplinary process even after the resignation and the process was fatally flawed. Confidentiality was breached making her continued employment untenable. It is submitted that the Complainant did carry out a protected act within the meaning of the Act and was penalised. The Complainant alleges the act of penalisation is she was treated less favourably than other employees and was treated differently following the reporting of her leg injury at work. It was put to the Complainant that she herself had caused the injury in the nature of self-harming. The Complainant was at regular intervals subjected to comments regarding the injury and noticed since reporting the said injury was treated less favourable than heretofore regarding sick leave absences. This has continued up to the date of termination. Both the invocation of the disciplinary procedure and the manner in which the disciplinary procedure was carried out are further acts of penalisation. It is submitted that employers owe a duty of care to all employees, in particular the Complainant, to ensure they are both mentally and physically safe at work and this duty was breached causing the complainant to suffer significant work related stress.

The Complainant well clears the burden required of her and left in the immediacy of events and it was reasonable for her to so do and considering herself constructively dismissed. The alleged conduct was such that the complainant was entitled to or it was reasonable for the Complainant to resign and not invoke the grievance procedure. The necessary duty of trust and confidence was shattered. The facts of the case amount to such a breach of contract that the Complainant was left with no reasonable alternative but to leave and she has discharged the burden of proof entitling the Adjudicator to hold that her resignation was a constructive dismissal.

Case law cited Cantor Fitzgerald International v Callaghan and Allen v Independent Newspapers (Ireland) Ltd (UD641/2000. (UD941/2007) and Joyce v Brothers of Charity (UD 407/2008), Oliva Barry v Quinn Insurance Limited (UD 1775/2010), Aidan & Henrietta McGrath Partnership V Monaghan PDD162, , Toni and Guy BlackRock Ltd (2010) E.L.R. 21

The complainant’s evidence was that she was employed as a Health Care Assistant. She had been diagnosed with Lupus after pregnancy and hospitalisation and had early onset kidney disease. In 2016 she had a laceration when working in the sluice room washing her hands and there was a cardboard disposal with a shar of glass and she had reported the incident to the appropriate authority and received 14 sutures and was out of work for a period of time. She had also lost a lot of weight, did not take a personal injury claim and did fill out a form and there were no issues between prior to this. She had a good rapport with all and then was called for a meeting with management regarding her cert. People were talking about her because of the leg injury and she felt intimidated as they were discussing how she got the injury. There were no other significant issues until 2020 and she had been out on sick leave in March 2020 with her kidneys.

She had been contacted about her certs by phone and through a letter in the post from HR. This was all very stressful and she felt harassed and had always been on time with her certs and had been told to send her certs in monthly instead of weekly. The complainant was told by letter that she was being investigated about conduct at work. It was not self-explanatory what the conduct was and there was mention of disciplinary and she was told she could have someone present. Because of covid this investigation was paused and the communication was very confusing and it was all very stressful.

She then found out that failure to submit certs was going to be investigated and at the time the procedure was to give certs to the CNM physically every month. The complainant would drop them in person and her gp did them monthly and then the complainant was told they had to be weekly and not monthly. The complainant had to attend OH and was unable to attend in January 2020 and told OH this also. In April 2020 the complainant was admitted to hospital with a respiratory infection, with covid like symptoms and as she had pleurisy she was advised by the doctor to take prednisolone and tramadol. The complainant is allergic to prednisolone and did not take the prescription and she was not admitted to hospital but was advised to isolate. Somehow a prescription ended up in Wexford and was presented to a chemist there. The complainant was contacted by the Director of Nursing Ms C who said a prescription was presented. The complainant was dumbfounded as she could not believe that her sensitive data had left the hospital. She requested a meeting with Mr Long and a meeting was scheduled for 25/05/2020 and the meeting was delayed.

The complainant felt stressed with suicidal ideations. At the meeting Mr Long showed her the prescription and she was told it was a serious issue, came under the potential misuse of drugs and it felt like interrogation by him. The gardaí came to her door and she was told it was a matter for them, she felt very stressed and she received an anonymous message on 27/05/20 making allegations against her. She sent a screen shot of the anonymous message, she knew people were talking about her but Mr Long said they could not find who sent her the message. On 02/06/2020 disciplinary proceedings were dropped dependent on the Gardaí investigation. 6 weeks later she was told that procedures were proceeding on 28/07/2020 and that letter never said what were the proceedings that she was would be subjected to. She initiated her resignation on 14/07/2020. The complainant felt that she was harassed and intimidated as the letters said procedures were going to begin in August. She resigned her position because she felt it was untenable to remain working after a confidential meeting was disclosed and there were rumours. The complainant had never discussed matters with anyone and yet details were out there. Mr Long wrote to her about counselling and offered the grievance procedure but the stress was too much for her to remain in employment.

Cross Examination of Complainant:

Under cross examination Ms Sweeney said the injury happened 09/02/2016 and she reported it. She confirmed that on 02/07/2020 she denied bullying and harassment at the meeting . There were rumours that she had an eating disorder and that she was self-harming and she was told not everyone is her friend. She believed she was treated differently after the leg injury and felt interrogated despite people knowing she had an illness.

She was on sick leave in October 2019 and confirmed that she was advised sick certs were to be submitted weekly but that she had been advised that monthly was acceptable. She recalled that she had been told certs were to be submitted in line with policies and procedures and did not recall Ms Conway telling her to submit certs fortnightly on 11/02/2020 and she believed they had to be submitted weekly and she recalled Ms Conway said the certs had to be dropped in. It was inconvenient having to go back to the gp to get more certs as the CNM said they did not have the certs despite her submitting them. She was informed that certs of 09/12/2019 to 03/03/2020 had not been received and received communication about that on 06/03/2020 and was told it would be maybe Level 1 disciplinary and read from the communication where her “..attendance is required at a disciplinary hearing on Wednesday 18th of March 2020”. The purpose is to determine whether your conduct at work constitutes a breach in code of conduct for employees. The possible consequence of arising from this hearing maybe the issuing of an oral wearing under Stage 1”.

She confirmed this letter did not mention anything about drugs and that she did not raise any concerns. She confirmed she got a letter of 21/04/2020 from Ms Power which provided copy of the original notice of the disciplinary hearing of 06/03/2020 which had been addressed to Mr Rachel Ennis and not Rachel Sweeney and had been returned and that “progression of the procedure is adjourned” owing to covid.

The complainant was told on 21/05/2020 that the HSE became aware of false presentation of a prescription and that this issue had been sent to the ward directly and escalated to management. The complainant requested a meeting to be scheduled. The anonymous text message she got could have happened a number of ways and she felt patient confidentiality had been breached. She confirmed that she was told there might be a resumption of matters depending on the garda investigation and that Mr Long said in his letter :

“this is pre-procedural stage meeting but due the severity and nature of the fraudulent doctoring of prescription, this is a criminal offence under the Misuse of Drugs Act and we need to be cognoscente of same”

and the letter following the meeting outlined

“Rachel was advised that she had the right to bring representation of either her work colleague or Union Rep with her to The meeting.”.

She confirmed that this letter outlined “Edward advised Roche! she will be contacted in writing in the next week or so to confirm a suitable date and time to attend the disciplinary meeting.

The complainant read the letter where she was advised on 02/06/2020

“The Gardaí hove advised that ‘they are investigating the matter under the Misuse of Drugs (Amendment ) Act 2015 as they have concerns that a prescribed prescription appears to have been altered and presented of two separate pharmacies’ within the environs of Wexford, for the intention of procuring medication under false pretenses. The outcome of their investigation may lead to a resumption of the HSE Disciplinary Procedure.”

She confirmed she was offered support services and counselling in this letter and tendered her resignation after suspension of disciplinary. The complainant had been subject to a single disciplinary regarding attendance at work and had been told she was given a verbal warning. She disagreed that she did not have to resign and secured employment in April 2023 as she was awaiting the result of the gardaí investigation and could not secure gardaí vetting for positions. The respondent asked her to reconsider resigning and she advised on 29/07/2020 that she wanted to proceed with her resignation.

The constant letters about disciplinary procedure was not normal and she wondered why they could not just leave her alone. She said there was no need for any disciplinary action to be resumed and confirmed that she did not engage in a grievance process. There was breach of confidentiality and there were rumours. The meeting 02/07/2020 was to be confidential and instead it was toxic and the grievance procedure was not an option for her and it was unfair.

In response to questions regarding efforts to mitigate her loss, she made efforts to secure other employment but with the garda investigation, garda vetting was stalled and did not look for anything outside of healthcare as that is the field she works in. She was on stress leave from May 2020 and became fit to return to work in April 2021 and her resignation was dated 14/07/2020. The hospital did not inform her why they were not pursuing the matter, she was never asked to give a statement to the hospital about the prescription. The complainant said she applied for maybe 15 different roles but had no references for interviews she was going for. She was advised on 07/04/2023 that the garda investigation against her was dismissed.

Summary of Respondent’s Case: CA-00039026-001

The respondent submits that the complainant commenced employment as a Health Care Assistant from November 2002 to August 2020 when she resigned from her position. The Respondent is not aware of any recent injury to Ms Sweeney Ennis’ leg at work, there was no report of same, no medical certs submitted for this reason, no incident report completed and no application for the Occupational Injury Grant Scheme. The only reference to any such injury are medical certs from 2005 and 2010 as regards to a foot injury and an incident report in 2016 for a leg laceration . The only other reference to an injury at work is as regards to a wrist injury in 2015. The Respondent submits these are all outside the reference period of Ms Sweeney Ennis’ current complaint. The only leg injury on file is a minor laceration from February 2016 which is more than 4 years before Ms. Sweeney left her post and for which no disciplinary action was warranted or initiated. The “investigatory/disciplinary procedure” which Ms Sweeney Ennis alleges was part of a programme of penalisation by her employer was in fact standard protocol in line with recurrent breaches of the HSE’s sick leave policy, also known as the Managing Attendance Policy and Procedures. This places a responsibility on employees “To co-operate fully with reasonable rehabilitative measures to facilitate a return to work as quickly as possible” . Ms Sweeney Ennis had failed to attend for appointments that had been arranged for her with the HSE’s Occupational Health Department to assess what supports would facilitate a return to work. She failed to Submit weekly medical certificates, had not submitted correct certificates to excuse her absence since late December 2019 at the time of Disciplinary Procedure being invoked in March 2020 and so was on uncertified, unauthorised leave.

Ms Sweeney Ennis further contends that she has been certified “unfit for work due to work related stress illness” as a result of the commencement of the Disciplinary Procedure in March 2020. In reality however Ms Sweeney Ennis remained at work until the 29/05/2020. Ms Sweeney Ennis emailed the HR Manager, Mr Edward Long, on 27/05/2020 to state that she was advised to take stress leave as she was the “centre of malicious talks and gossips” following the receipt of an anonymous text on 16/05/2020 related to an investigation as to falsified prescriptions. This set out

“Give ya a heads up soz to tell ya but dere is gossip goin round dat ur a drug addict n dat u have stole pads to right ur own medicine everyone was talking bout it it came from da … floor i feel bad for ya think u shud no” (sic)

It would appear the stress illness was directly related to the gossip surrounding the investigation and had no connection whatsoever to the suspended March 2020 Disciplinary Proceedings or indeed the “making a complaint or representation…as regards any matter relating to safety, health or welfare at work”.

Other than those references, there is no record of any recent injury to Ms Sweeney Ennis’ leg or reporting of same, and no record of any complaint or representation made by Ms Sweeney Ennis under the Safety, Health and Welfare Act, 2005. As such, where there is no complaint, there can be no penalisation. Disciplinary Procedure was only invoked in relation to Ms Sweeney Ennis breach of the Managing Attendance Policy and Procedures by not submitting regular medical certificates to excuse her ongoing absence from Dec 2019 onwards. This Disciplinary Hearing was delayed due to COVID and never actually took place as Ms Sweeney Ennis tendered her resignation. As such there has never been any disciplinary sanctions arising from same. There is no connection between any injury, resultant complaint and Ms Sweeney Ennis’ sick leave on stress grounds as it has been clearly demonstrated this was in relation to another issue.

Second Complaint:

The complainant submits she was constructively dismissed and that she was given an opportunity to reconsider the matter but the duty of trust and confidence has been breached to such an extent this is not a viable option. In March 2020, the Disciplinary Policy was invoked solely as regards to Ms Sweeney Ennis’ breaches of the HSE’s Managing Attendance Policy and Procedures i.e. failure to submit weekly medical certificates and to cooperate fully with reasonable rehabilitative measures to facilitate a return to work. Disciplinary Proceedings however were soon put on hold to allow the HSE to respond to the global Covid-19 pandemic and this was communicated to Ms Sweeney Ennis at the time. In July 2020, after the lifting of restriction on such Proceedings taking place within the HSE, Ms Sweeney Ennis was invited to a Disciplinary Hearing. She declined to attend same as had tendered her resignation. As such no disciplinary sanctions were ever placed on Ms Sweeney Ennis as a result of these Proceedings regarding her failure to comply with the Managing Attendance Policy and Procedures.

Concurrently to this, in May 2020, Wexford General Hospital were advised an attempt had been made to falsify a prescription issued by the Hospital in Ms Sweeney Ennis’ name and presented at two separate pharmacies. This was reported to and investigated by An Gardaí Siochana. A meeting was held on 25/05/2020 to discuss this with Ms Sweeney Ennis at her request and a letter issued after this meeting to advise that no Disciplinary was being pursued in relation to this incident based on the information available at that time. It would appear that Ms. Sweeney Ennis seems to have conflated both issues. It is clear that the letter from 26th April, and the consequential letter on 29th July reconvening the disciplinary hearing was in relation to Ms Sweeney Ennis’s breaches of the Managing Attendance Policy and Procedures for the period Dec 2019-March 2020 and could not have been in relation to falsified prescription.

Ms Sweeney Ennis alleges the “The confidentiality of the process was breached in that it appears various colleagues were aware of the matter.” This would seem to be in relation to the receipt of a text message by Ms Sweeney Ennis on 26/05/2020 which professes to be warning Ms Sweeney Ennis of gossip in the hospital about her stealing “pads” to write prescriptions. As this was not the substantive matter of the incident and no such allegations were made regarding Ms Sweeney Ennis, it is clear this gossip did not come from Hospital Management or anyone who was aware of this issue as it is factually incorrect. Ms Sweeney Ennis then argues “The process was not carried out with due regard to fair procedures.” But as there was never any Disciplinary Process invoked as regards the falsified prescription or any allegation that Ms Sweeney Ennis was the culprit, we fail to see how there was any failure as to fair procedures.

Ms Sweeney Ennis contends her resignation was a Constructive Dismissal which is utterly refuted by the HSE and she should have exhausted all internal remedies and grievance procedures before undertaking such a resignation. She has never invoked the Grievance Procedure during her employment with Wexford General Hospital. Ms. Sweeney Ennis tendered her resignation in July 2020. Wexford General Hospital, afforded Ms Sweeney Ennis every opportunity to withdraw her resignation in case it had been made in the “heat of the moment” or while Ms Sweeney Ennis was under “emotional stress”.

Written correspondence was issued to Ms Sweeney Ennis to ask her to reconsider her resignation and Wexford General Hospital also took the unusual step of encouraging the Complainant to submit a complaint under the Grievance Procedure. These were not the actions of an unreasonable Employer and that the limited circumstances where a Complainant is so poorly treated that the Grievance Procedure can be bypassed simply do not apply to Ms Sweeney Ennis. The Complainant has not exhausted all internal remedies and given the employer opportunity to address the issues. In addition to this it would appear that Ms Sweeney Ennis has conflated the Disciplinary Process that was commenced in March 2020 as to her failure to comply with the Managing Attendance Policy and Procedures with the investigation into a falsified prescription that came to light in May 2020. Ms Sweeney Ennis’s arguments as to fair procedures do not apply when the Disciplinary Process was never invoked for the prescription incident.

It was submitted that the complainant failed to satisfy the “reasonableness test” and failed to establish that the Respondent conducted its affairs in relation to her so unreasonably that she could not be expected to put up with it any longer to justify her resigning. The burden is with the complainant and she did not invoke the Grievance Procedure. The respondent wrote to her on receipt of her resignation to ask her to reconsider her resignation and utilise the grievance procedure. The Complainant has not exhausted all internal remedies and given the employer opportunity to address the issues.

Case law cited included A Community Resource Worker v A Charitable Organisation ADJ-00015089 , Ryan, Cannon and Kirk Accounting Services Limited v Violeta Kneite UDD 1910/2019, Cafferkey v Metrotech Services Ltd UD 932/1998 and Martin v Yeoman Aggregates Ltd [1983] IRLR 48

Evidence of Ms Patricia Conway

The evidence of Ms Conway Night Assistant Director of Nursing was that she looked after rostering and escalation of issues. The complainant was assigned to a ward and Ms Conway was advised in 2020 that sick certs had not been received from the complainant for maybe a period of 2 months and the complainant had been out sick 3 months. This would normally be managed through the Managing Attendance Policy and Procedures 2009 andMs Conway read from the policy which states that medical certs need to be submitted “to the appropriate office on the third day of the absence.” and“Follow-up certificates must be submitted on a weekly basis unless the employee is advised otherwise”. There had been a management referral to OH and the complainant had not attended as complainant said did not receive the appointment and Ms Conway communicated to her that she would accept fortnightly certs. The complainant informed her she hoped to return on 02/03/2020 and the complainant was told by Ms Conway there might be disciplinary and did not say what that disciplinary might be. As Ms Conway works nights 7 nights on, 7 nights off Ms Power took over and Ms Conway emailed her concerns that there had not been sick certs received from the complainant and that the complainant had cancelled the OH appointment.

Under Cross Examination Ms Patricia Conway said she retired April 2024 after 14 years working. She did not recall if others who were out sick sent in monthly sick certs as most were weekly and maybe fortnightly and she allowed Ms Sweeney to submit certs fortnightly. The absence process is that line manager works in same office and sometimes people would email in their sick certs. The office is open 24 hours and some employees put the certs under the door and she carries a bleeper and would have been available through the bleeper system if she was requested. If certs are not submitted into the office they might be submitted to the clinical manager. She thought it unusual that the certs would be given on the third floor and did not accept that the system was chaotic. The complainant was aware of the process and she had not submitted sick certs since 09/12/2019 since her absence in November and in January she produced one cert covering 3 months absence which Ms Conway did not accept. The policy says “weekly unless advised otherwise” and the complainant had not attended OH and did not advise that she did not want to attend OH. She did not personally recall the complainant cutting her leg and did not recall any discussion about a missing prescription in May 2020. No one had been authorised by her to provide certs greater than fortnightly and it would not be the norm to acknowledge receipt of a person’s sick cert.

Evidence of Ms Jennifer Power

The evidence of Ms Power was that she was Assistant Director of nursing and her colleague advised that there was a stage 1 disciplinary against the complainant who was a daytime worker and Ms Power started working in October 2019 and had never met the complainant prior to this. The letter of 06/03/2020 regarding an OH appointment was returned as the address was correct but the letter was addressed to Rachel Ennis and not Rachel Sweeney. Then Covid pandemic arose and processes such as this were suspended on 27/03/2020. On 05/06/2020 there was a telephone conversation regarding extension of sick pay and the complainant said she was stressed and she would send in certs. The complainant was advised she would be referred to OH and that a risk assessment was necessary and EAP details were provided. The complainant told Ms Power her house had been searched by the garda. There was a further meeting on 02/07/2020 following an issue regarding certs on 25/06/2020 and the complainant had been told she remained noncompliant with the Managing Attendance Policy and Procedures and certs were requested.

The meeting of 02/07/2020 that took place with the complainant was with regards to a sick cert that mentioned stress and Ms Power read the details of that meeting where the complainant advised the stress was “nothing to do with the ward and I am happy working there” and that her manager gives her support and guidance . Ms Power said the complainant at that meeting had reported positively on the good communication in the department and that her work colleagues are supportive and she “get on well with everybody”. She denied that there were pressures outside of work affecting her at work and did not need work support and “coping well” and the complainant said she had no difficulty working with anyone. When asked about the incident about an eating disorder the complainant advised Ms Power she did not want the respondent to follow up on that. The complainant was advised by letter on 28/07/2020 that there would be a disciplinary procedure initiated regarding the certs and it was a formal disciplinary hearing under Stage one of the disciplinary procedure and it would also be attended by Mr Long and Ms Power did not know that the complainant had resigned at that stage.

The only matter that Ms Power was dealing with was management of attendance and while she knew about the prescription issue she was not directly involved. Ms Power knew that the complainant was stressed about the prescription issue. Ms Power not aware of any other disciplinary issues. The complainant had communicated that she was stressed about the garda. Ms Power did not go into details of this and told her she needed to submit sick certs on time. HR provides her with information regarding disciplinary and absence. The complainant did not express any doubts or concerns about the meeting in July 2020 and the letter of 28/07/2020 was a follow up to the letter of 21/04/2020 setting out that it was reinstatement of notice of the disciplinary. The complainant had been advised on 21/04/2020 that there was a deferral of the disciplinary and the hospital was not aware at that stage about the prescription incident. On 11/02/2020 disciplinary was discussed with the complainant.

Under cross examination Ms Power said she had never met the complainant prior to this and did not know about the 2016 issue and only became aware of the 2016 issue from the documents. Following a meeting with the complainant she advised on 04/03/2020 that the disciplinary was to determine “whether your conduct constitutes a breach” and Ms Power wrote this letter and signed it and HR provided her with the information and HR do not have to sign off on the letter and she included the disciplinary policy. She said it was her understanding that the complainant knew what the letter was about. The letter of 21/04/20220 came about as the colleague had met with the complainant. It was her recollection that the complainant had also informed Ms Power about the prescription and said there was an ongoing garda issue regarding this. She denied the letter of 28/07/2020 does not mention what the meeting is about as it refers to 21/04/2020 where certs had been sought. She had discussed the matter with Assistant Director of Nursing and Ms Sweeney, did not discuss it with anyone else, did not know why the complainant resigned and this was the first disciplinary that she had led.

Evidence of Edward Long HR Manager

The evidence of Mr Edward Long was that he was HR Manager and commenced employment in December 2019. He received a phone call about a prescription and was present when the Director of Nursing phoned Ms Rachel Sweeney about the matter on. The complainant was told that they were not invoking the disciplinary procedure at that time and that the garda had been contacted, the meeting last 15 minutes and the disciplinary procedure never resumed. He had no direct involvement in the complainant’s other disciplinary matter regarding attendance. There was a reference to a possible consequence being a oral warning issued in a letter of 28/07/2020 from Ms Power which would last for 6 months and if nothing else arose it would then be removed. The complainant did not query this with him and he received a letter of resignation prior to that dated 14/07/2020 at the same time there was disciplinary process pending which had been commenced by Jennifer Power for breach of the management of attendance policy. Mr Long wrote to the complainant on 21/07/2020 asking her to reconsider and he did not hear back from her. The policy of attendance that was in place at that time is dated 2007 and the complainant could have addressed matters in the grievance procedure and sought clarification and they would have reclarified to her that they were holding back on progressing any disciplinary regarding the prescription. She was on €18.11 per hour at the time. Ms Sweeney was happy that he facilitated her with an early meeting regarding the prescription.

Under cross examination Mr Long said he did not know the complainant and only met her once and spoke to her on 2 occasions. Arising from 2016 incident where she injured her leg, he was not aware of any smear campaign and did not hear any disparaging remarks and he would have taken on the role of HR Manager after that in 2019. The process for managing attendance changed in August 2022 and employees still have to submit a cert on 3rd day. Physical and emailed certs are accepted and he would assume certs are handed to the line manager. It was not unusual to move to next level for the meeting which involved the Director of Nursing and meetings such as this are confidential and you don’t talk about it outside the room. He assumed that it would have been discussed with the complainant what an oral warning might mean. When pre-procedural is referred to it means informal counselling. Stage 1 Disciplinary did not occur. She was invited to a meeting on 21/05/2020 regarding a separate incident and the letter did not say disciplinary as the two issues of attendance and prescription were dealt with separately. The employment policy was utilised regarding the prescription as the complainant was an employee at the time and the complainant was an inpatient at the time. He would have engaged with his colleagues at a regional level about this matter and did not investigate anyone else about the matter of the prescription. He advised the complainant they were not continuing the matter of the prescription as it was a garda matter. A prescription had been falsified and the letter said “outcome may lead to a resumption of the HSE disciplinary process”. The complainant told him about the gossip and the text message and it was not the phone number of an employee as he investigated this. He did not divulge anything about her circumstances. The complainant was offered grievance procedure and counselling. He was not aware that the complainant was suffering from suicidal ideation and the complainant was the pre-procedure informal counselling which sets out

“Counselling is an informal method of dealing with shortcomings in an employee’s attendance, work or conduct without invoking the disciplinary procedure. The objective of the counselling interview is to alert the employee to his/her shortcomings and to decide what measures should be taken to bring about the required improvements.”

He understood the complainant was happy he facilitated her with an early meeting following the phone call to her about the prescription. He did not have any remit to investigate any doctor regarding the prescription matter and did not agree that the attendance matter should not have been disciplinary.

Findings and Conclusions: CA-00039026-001

The complainant commenced employment on 01/10/2002 and her employment ended on 14/07/2020, her salary was €18,431 and she worked 19.5 hours weekly. The complainant submits that she injured her leg at work on 09/02/2016 and that arising from reporting this health and safety incident she suffered detriments. She submits that the detriments included disciplinary action regarding alleged failures to comply with the attendance policy, being subjected to the pre-counselling disciplinary policy regarding a prescription that was presented to pharmacies following her attendance at the hospital as a patient and was subjected to gossip.

The respondent denies the allegation and submits that the alleged health and safety matter arose in 2016 and that the complainant failed to comply with the attendance policy resulting in meetings in 2020 regarding absence. When matters regarding a prescription was brought to their attention they set out that discussed this with the complainant and advised that the matter would not be pursued any further by them at that time as the gardaí were involved. They submit the complainant failed to utilise the grievance procedure and resigned her position despite requesting the complainant to reconsider her decision.

Parties submitted extensive submissions and additional submissions regarding events and whilst I will not be referring to every email, or incident I have taken into account all the submissions made to me in the course of my investigation as well as the evidence presented at the hearing.

It is set out within s27.—(1)

…“penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

The WRC received the complaint on 04/08/2020 and therefore it is to be established if in the cognisable period 05/02/2020 – 04/08/2020, the Respondent’s actions were contrary to the terms of s.27 and nothing was submitted to extend this period.

6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

I am satisfied that there was a protected act under s27(3) on 09/02/2016 and it is next to be determined if a detriment arose during the cognisable period. It is noted that that the complainant was advised of the threat of disciplinary arising from the failure to submit sick certs and the matters arising from a prescription presented which led to a garda investigation that could be seen as a detriment under the Act and having cited detriments claimed to have been suffered during the cognisable period, it is necessary to give consideration to each of these and examine whether there is a casual link between the protected act and any detriments.

Paul O’Neill v Toni & Guy Blackrock Limited [2010] ELR 1, sets out.

“the Claimant must establish, on the balance of probabilities, that he made complaints concerning health and safety. It is then necessary for him to show that, having regard to the circumstances of the case, it is apt to infer from subsequent events that his complaints were an operative consideration leading to his dismissal. If those two limbs of the test are satisfied it is for the Respondent to satisfy the Court, on credible evidence and to the normal civil standard, that the complaints relied upon did not influence the Claimant’s dismissal.”

Labour Court Decision Scott Hazel v Stobart Ireland Driver Services Ltd HSD172 examined disciplinary action taken against a complainant and found that

“to sustain a complaint of penalisation it is essential that the detriment complained of, in this case a final written warning, be causally connected to one or more of the protected acts referred to in subsection (3) of Section 27 “

I note that following the complainant raising the health and safety concerns in 09/02/2016 the complainant appears to have had a largely uneventful period of employment for some time thereafter. She was out on sick leave from November 2019 and her evidence was that the sick certs were submitted and the respondent advised her that they did not have them. The Managing Absence Policy and Procedures provides that

“If an absence exceeds two continuous days a medical certificate must be submitted to the appropriate office on the third day of the absence. Follow-up certificates must be submitted on a weekly basis unless the employee is advised otherwise”

Although it would appear that that the respondent’s handling of the sick certs through the managing absence policy was somewhat chaotic and uninformed at times with individuals pre-empting decisions,

“can the first meeting be disciplinary as Patricia has already met with her?”,

I do not find it overall unreasonable that the respondent utilised the Managing Absence Policy as the policy provides that the responsibility of the line manager is :

“To advise employees when their attendance record is a cause for concern (e.g. frequent short-term absence, provision of unacceptable medical certificates, no certificate, etc.) and to advise of the necessary improvements”

and that

“Disciplinary Procedure will only be invoked when there is evidence that an employee has breached this policy”

The respondent made the decision to involve the disciplinary procedure albeit the impact of covid was such that it was necessary to postpone the process which the complainant was advised on 21/04/2020 and she was further written to on 28/07/2020 advising reinstatement of disciplinary process albeit had resigned at that time. Taking into consideration all the evidence I find that the complainant raised a safety concern and suffered a detriment but the ‘but for’ test has not been met and the respondent has shown objective reasons for initiating a disciplinary process unrelated to the complainant’s safety concerns and this aspect of the complainant’s complaint is not well founded.

The complainant also outlined that management’s handling of the matters pertaining to the prescription amounted to penalisation. I note that as a patient at the respondent’s hospital the complainant was issued a prescription which she submits she returned to the prescribing doctor and which became subject to a garda investigation. Mr Long in his letter of 02/06/2020 outlined

“Thank you for attending the pre-procedure Stage — Informal Counselling meeting.. The purpose of this meeting was to discuss a prescription incident that has been brought to the attention of hospital management and to provide you with an opportunity to convey your respond(sic) around same. l wish to confirm to you that based on the information currently available, a decision has been token not to invoke the HSE Disciplinary procedure at this his point in time. Nevertheless, I wish to advise you that hospital management hove informed An Garda Siochana of the matter….The outcome of their investigation may lead to a resumption of the HSE Disciplinary Procedure.”

While is it difficult to understand what was the logical reasoning for engaging with the complainant regarding this matter unrelated to her employment, I do not find that the respondent’s decision to initiate a pre-procedure Stage – Informal Counselling meeting was in any way related to the safety matter raised in 2016 and the ‘but for’ test has not been met and this aspect of the complainant’s complaint is also not well founded. For completeness, I do not find that any matters regarding gossip or text messages received amounted to penalisation under s27 during the cognisable period.

Taking into consideration all the circumstances and evidence I find that the complaint is not well founded and dismiss the complaint.

Summary of Complainant’s Case: CA-00039026-002

On 27/05/2020 the Complainant emailed Mr Long informing him how stressful it was, how damaging it was for her good family name, stated there had been a breach of confidentiality and her name was the centre of malicious talk and rumours. This breach of confidentiality affected the Complainant to the extent that it caused her employment with the Respondent to become untenable. As a result of matters the Complainant attended with a counsellor from occupational health, followed up with a visit to her GP who advised taking stress leave until the Complainant felt she had the confidence to resume work and the Complainant suffered a damaging effect to her mental health. A letter dated 02/06/2020 advised the Complainant from the Respondent that there would be no further disciplinary action and that the Gardaí had been informed. On 05/06/2020 Gardaí called to the complainant and she was asked to attend at the Garda Station where she was arrested and questioned. No further action has been taken against the Complainant by An Garda Siochána.

On 25/06/2020 the Respondent wrote to the Complainant advising her to attend a work assessment including with Ms Power. On 25/06/2020 the respondent wrote advising that her absence was being recorded as “absent without leave” as her last medical cert was up to 12/06/2020, despite the complainant advising on 18/06/2020 by telephone that further certs would be issued. On 14/07/2020 the Complainant wrote to the Respondent informing the Respondent:-

Cross Examination of Complainant:

and the letter following the meeting outlined

“Rachel was advised that she had the right to bring representation of either her work colleague or Union Rep with her to The meeting.”.

She confirmed that this letter outlined “Edward advised Roche! she will be contacted in writing in the next week or so to confirm a suitable date and time to attend the disciplinary meeting.

The complainant read the letter where she was advised on 02/06/2020

Summary of Respondent’s Case: CA-00039026-002

The respondent submits that the complainant commenced employment as a Health Care Assistant from November 2002 to August 2020 when she resigned from her position.

The complainant failed to raise any complaints with the respondent prior to her employment ending and it was refuted that a Constructive Dismissal arose. The complainant failed to exhaust all internal remedies and grievance procedures before undertaking such a resignation.

Second Complaint:

Respondent is not aware of any such recent injury to Ms Sweeney Ennis’ leg at work, there was no report of same, no medical certs submitted for this reason, no incident report completed and no application for the Occupational Injury Grant Scheme. The only reference to any such injury are medical certs from 2005 and 2010 as regards to a foot injury and an incident report in 2016 for a leg laceration . The only other reference to an injury at work is as regards to a wrist injury in 2015. The Respondent submits these are all outside the reference period of Ms Sweeney Ennis’ current complaint.

The complainant submits she was penalised following her reporting of a leg injury at work. The only leg injury on file is a minor laceration from February 2016 which is more than 4 years before Ms. Sweeney left her post and for which no disciplinary action was warranted or initiated. The “investigatory/disciplinary procedure” which Ms Sweeney Ennis alleges was part of a programme of penalisation by her employer was in fact standard protocol in line with recurrent breaches of the HSE’s sick leave policy, also known as the Managing Attendance Policy and Procedures. This places a responsibility on employees “To co-operate fully with reasonable rehabilitative measures to facilitate a return to work as quickly as possible” . Ms Sweeney Ennis had failed to attend for appointments that had been arranged for her with the HSE’s Occupational Health Department to assess what supports would facilitate a return to work. She failed to Submit weekly medical certificates, had not submitted correct certificates to excuse her absence since late December 2019 at the time of Disciplinary Procedure being invoked in March 2020 and so was on uncertified, unauthorised leave.

Evidence of Ms Patricia Conway

Evidence of Ms Jennifer Power

Evidence of Edward Long HR Manager

Findings and Conclusions: CA-00039026-002

The complainant submits that she was left with no alternative but to resign her position owing to the behaviours of the respondent and it was reasonable in all the circumstances and she was excepted from exhausting avenues including the grievance procedure in all the circumstances. The respondent submits that the complainant resigned her position and failed to utilise the grievance procedure and she was asked to reconsider her resignation on two occasions but did not.

Section 1(b) of the Act defines a constructive dismissal for the purposes of the Act as follows: -

“(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”.

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.”

It is to be established, therefore, whether the complainant had an entitlement to terminate her employment because of the actions of the Respondent. There is a high burden placed on the complainant in constructive dismissal cases and Berber v Dunnes Stores [2009] IESC 10, held:

‘There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee. In assessing whether there has been a breach by the employer what is significant is the impact of the employer’s behaviour on the employee rather than what the employer intended. Having regard to the mutuality of the obligation the impact of an employee’s behaviour is also relevant. The test is an objective one: if conduct objectively considered is likely to cause serious damage to the relationship between employer and employee a breach of the implied obligation may arise.’

It is further set out

….“The appropriate test must be applied to that conduct. In relation to the test the following matters are to be noted:-

1. The test is objective.

2. The test requires that the conduct of both employer and employee be considered.

3. The conduct of the parties as a whole and the accumulative effect must be looked at.

4. 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.”

I note that the complaint form refers to the respondent commencing disciplinary unrelated to the complainant’s employment and sets out that the respondent halted this process by letter on 21/04/2020. In her evidence the complainant confirmed that in fact, the matter unrelated to her employment; a matter regarding a prescription she received as a patient; was not the subject of the letter of 21/04/2020. This letter of 21/04/2020 was in fact with regards to a disciplinary process for alleged breaches of the absence policy. The matter regarding a prescription did not come to the attention of the respondent, until May 2020 when the respondent made contact with the complainant on 22/05/2020.

It would appear that the respondent therefore, engaged with the complainant regarding two separate matters: one regarding alleged breaches of the absence policy pursued through the managing absence policy and procedures and the other regarding the presentation of a prescription which the respondent pursued through the pre-procedure Stage — Informal Counselling.

Taking into consideration all the facts of the case and evidence of the witnesses, the respondent had a belief that the complainant had failed to comply with the managing absence policy. The letters submitted to the complainant were somewhat chaotic and uninformed at times with individuals pre-empting decisions,

“can the first meeting be disciplinary as Patricia has already met with her?”,

but in all the circumstances I do not believe it was unreasonable of the respondent to utilise the managing absence policy and procedures regarding this matter.

Mr Long’s evidence was that it was accepted that the prescription issue was unrelated to the complainant’s employment. For reasons unclear, he deemed it appropriate to utilise an employment policy to engage with the complainant regarding a matter that was nothing to do with her employment and which was to do with a patient at the hospital who happened to be also an employee. I note that Mr Long outlined that no other employees were interviewed regarding this prescription matter. I find it quite extraordinary in all the circumstances that the respondent pursued this matter, which was unrelated to the complainant’s employment, through any employment policy and where furthermore, did not deem it necessary to interview any other employees.

I also note that no further disciplinary matter arose during her employment regarding the prescription and that on 02/06/2020 the complainant was advised that they had decided “not to invoke the HSE disciplinary procedures at this time” and it became a matter for the Garda who later dropped the matter against the complainant. It would, appear that at times, the communications issued to the complainant did not clearly set out the purpose of the meeting or what was the specific alleged breaches of the absence policy from Ms Power and what was the relevancy of the prescription issue to the complainant’s employment from Mr Long. This was further evident during the hearing where it took significant amount of time to establish the subject matters of the parallel process letters issued to the complainant.

In constructive dismissal cases, the conduct of both parties must be examined. A complainant who seeks to invoke the reasonableness test must also act reasonably by providing the employer with an opportunity to address any grievance they may have. They must normally demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before resigning as set out in Conway v Ulster Bank Limited UDA474/1981.

The complainant was interviewed regarding her absence from work on 02/07/2020 and was very clear at that time that she was happy with supports she was receiving and while referring to pressures outside of work affecting her at work she clearly set out that she did not need work support and was “coping well”. Furthermore the complainant said she had no difficulty working with anyone and therefore, it is somewhat surprising then that the complainant in her letter of resignation sets out on 14/07/2020:

“I refer to recent events, in particular, the disciplinary process, which was commenced against me and which currently stands adjourned. These stalling of this process and other recent matters have left me feeling I have no option but to resign”.

Her letter sets out that the stalling of the absence process was the main reason she had to resign. This had been adjourned owing to covid and she only makes a fleeting reference to the matter of the prescription. I further note that the complainant had two further opportunities to consider her resignation offered to her by the respondent on 21/07/2020 and 30/07/2020 and declined these opportunities. In assessing whether the complainant has met the test of constructive dismissal in respect of reasonableness or the contract test, I note that the complainant was aware of the grievance procedure and indeed referred to it in her resignation and decided not to utilise it as she submitted she “would haveno faith in same”

The EAT referencing a grievance procedure held in Beatty v Bayside SupermarketsUD142/1987, that:

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases by employer and employee as the case may be, this is the view expressed and followed by the Tribunal in Conway v Ulster Bank Limited 475/1981. In this case the Tribunal considers that the procedure was not followed by the claimant and that it was unreasonable of him not to do so. Accordingly, we consider that applying the test of reasonableness to the claimant’s resignation he was not constructively dismissed”.

While there may be situations where a failure to utilise or give prior formal notice of a grievance may be justified such as Liz Allen v Independent Newspapers [2002] 13 ELR 84 however, I do not find factors present which might excuse the Complainant’s failure to avail of raising a grievance in this instant case. I find no evidence to indicate that the complainant made reasonable efforts to address her grievances before resigning.

Although the respondent’s behaviour was at times problematic including engaging with the complainant as an employee for something when she was a patient at the hospital however, I note the complainant clearly set out this was not the main reason for the resignation. In all the circumstances I cannot accept this as a fundamental breach going to the root of her contract, in circumstances where the Respondent gave the complainant opportunities to reconsider her resignation through the meeting of 02/07/2020 where the complainant said her absence was nothing to do with the war and that shew as happy working there and that she was coping well, as well as follow letters after her resignation.

The complainant has failed to satisfy reasonableness test or breach of contract tests referred to above and I find that Complainant was not constructively dismissed from her employment and the complaint of unfair dismissal is not well founded.

Summary of Complainant’s Case: CA-00039026-003

This complaint was withdrawn.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00039026-001

Taking into consideration all the circumstances and evidence I find that the complaint is not well founded and dismiss the complaint.

CA-00039026-002

I find that Complainant was not constructively dismissed from her employment and the complaint of unfair dismissal is not well founded.

Dated: 22-01-26

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Health and safety, penalisation, unfair dismissal, constructive dismissal, parallel process