Tusla Child and Family Agency (Represented by Mason Hayes & Curran) v Catherine Flynn (Represented by ESA Consultants)

• Jurisdiction: Ireland
• Judgment Date: 09 February 2018
• Judgment citation (vLex): [2018] 2 JIEC 0908
• Docket Number: FULL RECOMMENDATION DETERMINATION NO.UDD1810 ADJ-00005216 CA-00007199-001
• Date: 09 February 2018
• Court: Labour Court (Ireland)

Labour Court (Ireland)

FULL RECOMMENDATION

UD/17/126

DETERMINATION NO.UDD1810

ADJ-00005216 CA-00007199-001

PARTIES:

Tusla Child and Family Agency (Represented by Mason Hayes & Curran)

and

Catherine Flynn (Represented by ESA Consultants)

DIVISION:

Chairman: Ms Jenkinson

Employer Member: Ms Doyle

Worker Member: Mr McCarthy

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

SUBJECT:

1 1. An appeal of an Adjudication Officer's Decision no: ADJ-00005216.

BACKGROUND:

2 2. The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 10 August 2017 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 23 January 2018. The following is the Determination of the Court:

DETERMINATION:

3 This is an appeal against the Decision of an Adjudication Officer under the Unfair Dismissals Acts 1977 – 2015 (the Acts) in a claim made by Ms Catherine Flynn against her former employer, Tusla Child & Family Agency, where she alleged that she was constructively dismissed. By decision dated 5th July 2017, the Adjudication Officer held that the complaint was not well-founded.

4 For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Catherine Flynn will be referred to as “the Complainant” and Tusla Child & Family Agency, will be referred to as “the Respondent”.

5 The Complainant referred her case to the Workplace Relations Commission on 27th September 2016. The appeal came before the Court on 23rd January 2018.

Background

6 The Complainant commenced employment with the Respondent as a Temporary Residential Care Staff in the High Support Unit, Crannog Nua, Portrane, County Dublin on a nine-month fixed-term contract, commencing on 20th March 2006. Her employer at the time was the Health Service Executive. The Complainant's fixed term contract was renewed in December 2006. Subsequently, the Complainant's appointment became permanent with effect from 1st June 2007. The Complainant resigned from her employment on 1st April 2016.

7 The Respondent was established under the Child and Family Agency Act 2013 on 1st January 2014. The Child and Family Agency encompasses the former HSE Children and Family Services, the Family Support Agency and the National Educational Welfare Board in addition to incorporating some psychological services and a range of services responding to domestic, sexual and gender based violence.

Summary of the Complainant's Case

8 Mr Joe Bolger, ESA Consultants on behalf of the Complainant submitted that the

9 Complainant had no option but to resign her position on 1st April 2016 due to the working environment. He said that the Complainant had set out the grounds of her resignation in an email on 4th April 2016, which followed a meeting with the Respondent held on 1st April 2016. He submitted that the Respondent did not investigate the reasons of the resignation and or try to establish its cause, and he contended that it should have offered her alternative reasonable accommodation. He said that the Complainant was not physically or mentally in a position to fulfil her role due to a range of issues, least of all some personal problems. However, the change to her contract from a temporary move to now a permanent move and change to the benefits contributed to her frustration.

10 Mr Bolger said that the Complainant was seeking re-instatement or re-engagement, if not then at least compensation.

11 Mr Bolger accepted that the Complainant was provided with written terms and conditions of employment which referenced a grievance procedures, as follows:-

• “You have the right to seek redress in respect of any aspect of your terms and conditions employment under the Health Service Executive Dublin North East grievance procedure. Should you have a grievance you should follow the grievance procedure which will be issued to you on commencement of your employment.”

12 He said that in or around June 2014 the Complainant was transferred from Portrane to Ballydowd Special Care Unit in Lucan, Co Dublin. The Complainant along with her colleagues was represented by her Union during this process. He contended that the Respondent was not entitled to make such changes and therefore unilaterally altered the Complainant's contract of employment. Mr Bolger accepted that the Complainant was moved and she complied with the instructions of the Respondent, however at all materiall times he contended that she was led to understand that this move was temporary. The Respondent indicated that the transfer was due to renovations of Crannog Nua which should be completed by December 2014. Staff were paid travel time and mileage expenses during this period. These payments were ceased in December 2015, without transferring back to Portrane.

13 However, in December 2015 Mr Bolger said that the Respondent wrote to the Complainant and her colleagues to inform them that the following benefits/expenses would cease: travelling time payment to and from work in Ballydowd; payment of aggregated hours — premium hours worked would be paid instead; mileage and tolls. It also stated that rosters may change from January 2016, permanent transfers from special care would continue to be offered based on permanent vacancies becoming available and on recognisable service that staff members have worked. Mr Bolger submitted that all these factors contributed to the Complainant's decision to resign.

14 Mr Bolger also submitted that the change to the Complainant's hours of work in January 2016 constituted a breach of contract and gave rise to constructive dismissal. In support of this contention he cited Dal v A S Orr [1980] IRLR 413 .

15 Mr Bolger submitted that the Respondent failed in its duty of care to the Complainant. He said that in June 2011, the Complainant was assaulted by a service user and as a result she was absent from work until 7th February 2012 which absence was covered by the Serious Physical Assault Scheme. He referred to that fact that on 5th December 2015 the Complainant was assaulted for a second time during the course of her employment and was on sick leave until 20 ^th January 2016 as a result. He said that the Complainant was not entitled to further sick pay and was forced to return to work. Mr Bolger contended that the fact that the work environment had inherent risks did not discharge the Respondent's duty of care by simply providing training. He submitted that the Respondent knew or ought to have known there was a high risk and failed to follow a Standard Operational Procedure (SOP).

16 Citing Berber v Dunnes Stores Ltd [2009] ELR , Mr Bolger submitted that the Respondent had failed to accommodate or provide facilities to protect the safety of the Complainant and other staff members. Mr Bolger said that in Berber the Supreme Court was satisfied that the injuries were caused by work place stress and that injuries were foreseeable unless reasonable care was taken. The Court cited Lady Justice Hale in Hatton:-

• “It is essential therefore, once the risk of harm to health from stress in the work place is foreseeable and that harm of that kind has taken place, to go on to conclude that the employer was in breach of his duty of care in failing to prevent that harm (and that the breach of duty caused the harm) But in every case it is necessary to consider what the employer not only could but should have done.”

17 Mr Bolger cited Rank Xerox Ltd v Churchill (7988) IRLR p280 , where the English Employment Appeals Tribunal, in dealing with a case where an employee was transferred pursuant to an express transfer clause, held that in determining where under his contract of employment an employee can be required to work, the correct analysis of the terms and conditions of employment are the same as that indicated by the Court of Appeal inWestern Excavating (ECC) Ltd v Sharpin respect of constructive dismissal, that is, through contract and not through the overall superimpositions of a test of reasonableness. Thus, he surmised that according to the decision of the Court in that case, no question of reasonableness arises for consideration where an employer transfers an employee pursuant to an express transfer clause.

18 He also referred to the matter of Waltons & Morse v Darrington [1997] IRLR 488 a secretary employed by a firm of solicitors claimed constructive dismissal as a result of problems she encountered with smokers in the office. A limited smoking policy was adopted by the firm but this did not lead to a sufficient improvement for Mrs Dorrington. She succeeded with a constructive dismissal claim. The UK EAT held that the employer was in breach of implied term in her contract of employment that the employer would “provide and monitor for employees, so far as is reasonable practicable, a working environment which is reasonably suitable for the performance by them of their contractual duties.”

Summary of the Respondent's Position

19 Ms Christine West, Solicitor, Mason Hayes & Curran Solicitors on behalf of the Respondent denied the allegation of unfair dismissal.

20 Ms West said that following the assault in 2011 the Complainant was absent from work and was paid in accordance with the Serious Physical Assault Scheme. This meant that the Complainant's sick leave was unaffected by this period of leave and she was paid as if she was working at the unit. During her absence, the Complainant was referred to Occupational Health to assess her fitness to return to work. The Occupational Health Physician assessed her as having developed an “adjustment reaction disorder as a consequence of this assault.” And reported that she had informed him that “at this point she would have reservations about ever being able to return to a High ‘Support Unit’.”

21 Ms West said that following on from this report, the Respondent explored the possibility of alternative...