HSE worker who got work texts at 3am and when she was out sick wins constructive dismissal case

A Workplace Relations Commission adjudicating officer wrote that the texts were “completely inappropriate by any standard” – but that he could only make a “marginal conclusion” in favour of the complainant and that just €1,000 was due to her under the Unfair Dismissals Act 1977.

The complaint was the only one to succeed out of ten lodged by the worker, Paula McCormack, against the HSE’s Community Healthcare Organisation 8 (CHO 8), which administers primary care in north and mid-Leinster, and Matrix Recruitment Group Ltd, the staffing agency employing her for the position.

Ms McCormack, a temporary clerical officer, said she had been forced to take stress leave in December 2020 over the conduct of her office manager, identified only as Mr B before realising that Christmas that she had “no option but to resign”.

Mr B, she said, made life “very difficult” by “constantly” changing the hours of work on the timesheets he was sending to Matrix and “did not pay her for any extra hours she worked”.

She said that all through the Covid-19 “emergency” she had to work extra hours “simply to survive and keep the job in some sort of shape” – all while Mr B “made life impossible” with “changing demands and impossible targets”.

Mr B also sent her “multiple, late-night work-related texts”, including in the early hours of the morning, she said, citing a one she received at 2.48am on a Saturday.

Calling it “a campaign of harassment”, she said Mr B’s behaviour would not have been accepted if she was a permanent HSE employee – arguing that the prospect of a permanent job had been “constantly used as a threat”.

Mr B set out a reply in a letter but did not appear to give sworn evidence, the tribunal noted.

HSE HR officer, Mary Quinn, said Ms McCormack “resigned of her own volition” and rejected the constructive dismissal allegation “absolutely”.

Ms Quinn acknowledged that the complainant “worked exceptionally well in a most difficult HSE Covid response situation” and accepted that “issues had arisen” with Mr B.

However, the health service maintained that the changes in hours on time sheets was “a normal office administration routine” relating to sick leave and flexi-time, denying Ms McCormack was denied pay or flexi leave.

Working hours, breaks, holidays and pay were “as standard” for a Grade 3 clerical officer, she said, and the HSE would “immediately” rectify any discrepancies discovered at hearing.

Ms Quinn added that the overall manager of the service was aware of the issues with Mr B and had started an investigation when Ms McCormack resigned.

A delay in looking into the matter “had to be excused” because of the senior manager’s workload and Ms McCormack quit “before any possible outcomes could take place”, she added.

“There can be no doubt that the relationship between the complainant and Mr B was difficult,” wrote adjudicating officer Michael McEntee.

“The sending of work-related text messages at 02.48 on a Saturday morning, to an employee on sick leave, was completely inappropriate by any standard. The evidence, under oath, given by the complainant was a catalogue of differences with Mr B,” he wrote.

He found there was evidence of “unreasonable behaviours” which was enough to make out a constructive dismissal claim, but that this was a “marginal conclusion” which had to affect the redress awarded.

He added that Ms McCormack had not made out a case for less favourable treatment compared with a permanent HSE employee, stating that the “office dynamic” with Mr B was “not helpful” but did not amount to “a direct systematic discrimination or victimisation”, rejecting a claim under the Protection of Employees (Temporary Agency Work) Act.

He also rejected Ms McCormack’s further claims under the Organisation of Working Time Act, the Payment of Wages Act and the Terms of Employment (Information) Act.