Tribunal rejects specialist's dismissal claim

A clinical psychologist who argued he was constructively dismissed by one of the State's foremost disability service providers, has had his case rejected by the Employment Appeals Tribunal.

Dr Mark Harrold argued he was bullied into leaving his post at St Michael's House in Goatstown, Dublin, in 2004 after he raised concerns with the Department of Health about the use of nursing homes by the service.

He had raised concerns about the use of Leas Cross nursing home in Swords, Co Dublin and the transfer of a resident there. Peter McKenna (60), who had Down syndrome, died there in October 2001, ten days after he left St Michael's House.

The tribunal judgment, received by the parties yesterday, found that Dr Harrold exhibited "a lack of engagement" with the grievance procedures open to him and that he "acted unreasonably in terminating his employment contract".

Dr Harrold had told the tribunal there was a "culture of bullying and harassment" at St Michael's House.

He said he had started having difficulties in 2001 when he wrote to the board saying he was "horrified at the circumstances of the death" of Mr McKenna and of his concerns about bullying within the organisation.

St Michael's House denied there was a "climate or an atmosphere of bullying".

Counsel for St Michael's House said the organisation was restructured between 2001 and 2003 "to cope with the very significant expansion it was undergoing". The employees' union had become involved and had represented staff over ten months, with meetings every month.

"Everything was put on the table" and no allegation of a "culture of bullying" was ever raised, he said. A number of witnesses employed by the organisation also gave evidence that they had not noticed bullying.

The tribunal heard that when he first raised his concerns in 2001, Dr Harrold was told he needed to engage in internal grievance procedures and three people were named to hear his concerns. Dr Harrold maintained two of the three were involved in the alleged bullying.

"During that time," the judgment said, "he was threatened with disciplinary action if he did not co-operate with the internal grievance procedure."

The judgment said Dr Harrold commented in a letter to the board that "he had spoken up and he realised he was now likely to become a target of this bullying".

He was offered a second investigative sub-committee but Dr Harrold felt the presence of one of its members meant it would not be objective. The board wrote to him telling him that because he had not co-operated with either process "the case was now concluded".

This prompted him to write to the Minister for Health with his concerns about bullying and nursing homes. A month later he was told by the board there were eight allegations of misconduct against him. The judgment said it was at this time, in July 2003, that Dr Harrold "felt personally bullied inasmuch as the issues raised . . . were being used to intimidate him".

Subsequently a meeting was convened attended by Dr Harrold, a representative of St Michael's House and a union representative. After the meeting, St Michael's House wrote to Dr Harrold and his union representative.

The tribunal said it was a "reasonable inference", however, that some time after September 23rd, 2003, Dr Harrold had decided to pursue his issues with St Michael's House outside any forum provided by his employer.

It found that his behaviour subsequent to that date exhibited a lack of engagement by him with the processes available within St Michael's House to deal with his complaints.

The judgement quoted from the textbook, Dismissal Law in Ireland, by Mary Redmond, which states: "There is something of a mirror image between ordinary dismissal and constructive dismissal.

"Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employer's grievance procedures in an effort to resolve grievance. The duty is an imperative in employee resignations."

The tribunal found there had been "a consistent pattern of lack of engagement by the claimant".

"The tribunal consequently finds that the claimant acted unreasonably in terminating his employment contract with the respondent."

The tribunal concluded, therefore, that the claim for constructive dismissal had failed.