EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UD1752/2011
Employee - claimant
against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Coughlan
Members: Mr J. Horan
Mr S. Mackell
heard this claim at Carlow on 10th May 2013 and 25th September 2013
Representation:
Claimant: Mr. Conor Feeney B.L. instructed by
Mr. William Fleming, William Fleming & Partners,
Solicitors, Belmont House, Belmont, Kilkenny Road, Carlow
Respondent: Mr. Kevin Byrne B.L. instructed by
Poe Kiely Hogan Lanigan, Solicitors, 21 Patrick St, Kilkenny
Claimant’s case:
The claim before the Tribunal was one of constructive dismissal. The claimant began her employment in the company in March 1999 at which time she performed general office duties. Over time the claimant’s role expanded to include responsibility for accounts.
There was a familial relationship between the directors of the company, the claimant and two other employees. Due to certain circumstances and difficulties in the familial relationship, the claimant’s relationship with the Managing Director, with whom she had daily interaction, deteriorated from in or around August 2008 when the claimant began to be verbally abused in the workplace. The claimant outlined that over time the duties and responsibilities associated with her role were removed from her remit.
On the 2nd June 2010 the claimant received a handwritten letter from the Managing Director containing a written warning. This warning was unwarranted and in addition the claimant did not have any details of the company’s grievance and disciplinary procedures. The claimant responded in writing to this effect. A further written warning issued to the claimant through the respondent’s solicitors on 19 August 2010. The claimant stated that this arose in circumstances where she had told the Managing Director that she would be left with no choice but to make a complaint against him if matters continued.
The other director wrote letter dated 24th August 2010 to insist that the warnings issued to the claimant be retracted. It was the claimant’s evidence that by this time the Managing Director had become very abusive. The other director departed the workplace some time later.
In December 2010 the claimant was accused of criminal damage in relation to broken glass in the Managing Director’s office door. The claimant described the workplace as having become unbearable. By this time the claimant had begun to lock her office door every day and she continued to be verbally abused by the Managing Director whenever he was in the building.
In January 2011 the claimant and another employee contacted a firm of solicitors who issued letter dated 31 January 2011 on their behalf to the Managing Director in regards to the work situation. The claimant received a letter of response dated 8 February 2011 which stated that an investigation into the workplace situation would be carried out but this did not transpire. Another letter issued from the Managing Director in February 2011 but again nothing fruitful came from this letter. In or around that time the claimant had to come to the assistance of another employee when an incident occurred.
No solution to the work situation was offered and there was no third party engaged to carry out an investigation. The claimant’s solicitor subsequently wrote letters dated 23rd February and 14th March 2011. The claimant had not been paid since 28th January 2011 as was the case for some other employees also. The claimant was responsible for the wages at one time but the Managing Director removed her access in 2010.
The claimant outlined a number of instances to the Tribunal that took place in or around July 2011. On 27th July 2011 the Managing Director told the claimant that she had three minutes to leave the building or he would lock her in.
When the claimant was working in her office she locked the door but one day the Managing Director kicked in the door to her office, crossed the room and took “a hold of” the claimant. The claimant tried to push him away and another person came to her assistance. A series of photographs in relation to this incident were opened to the Tribunal.
The claimant was on annual leave for a week in July 2011 and during that time a lot of folders and files went missing from her office. A series of emails between the claimant and the Managing Director were opened to the Tribunal.
The Managing Director issued her with a final warning by email dated 8 August 2011 but as she had received a few such warnings already, the claimant did not pay any heed to it. Prior to this, on the morning of the 8th August 2011, the Managing Director had sworn and shouted at the claimant and told her she was “sacked.” As she had also been told this on other occasions she did not pay any heed to it and later that day she received the final warning.
A number of text messages between the claimant and the Managing Director were opened to the Tribunal. Following these and a further incident when the claimant was told by the Managing Director that she would have no further access to the building, the claimant removed her personal items from the office and departed the employment on 11th August 2011. The claimant subsequently secured new employment on 19th October 2011.
During cross-examination the claimant admitted to using foul language in response to what the Managing Director said to her at times. The claimant did not recall calling another employee (DR) a derogatory name. It was put to the claimant that DR and other employees had signed a letter stating that they had been verbally abused by the claimant.
It was put to the claimant that from June 2010 to August 2011 she had regularly told the Managing Director that he did not have authority and that she had refused to take instruction from him. In response the claimant recalled that she had told the Managing Director he could not dismiss her without utilising proper procedures. In addition the claimant stated that she did not need his instruction to perform her role as she was fully competent and did not need supervision.
It was put to the claimant that she had chosen to ignore the warnings issued to her. The claimant stated that the manner in which she had received the warnings was unwarranted and she did not consider them to be proper written warnings.
SR a former employee of the respondent company gave evidence of his last year of employment. He said that following the judicial separation of both business partners the working environment became very difficult for all employees. Staff did not want to be involved in conflict or take sides but this proved to be difficult. He couldn’t say who was initiating or instigating the altercations “it was just continuous”.
Staff wrote a letter to both directors/business partners and listed areas of change to work practices to try and alleviate the situation and keep them out of it. Wages were late every month and it appeared that the Managing Director did not want to sign off on cheques that included his former business partner.
Under cross examination SR told the Tribunal that paperwork was left outside the claimant’s office door as the office would be locked. She was refusing to take instruction from the Managing Director saying that he was not her boss, she answered to the other director. Asked if he was aware that the claimant and others in the familial relationship were hoping to take over the business he said that it was hearsay and a rumour at most.
TM ex- business partner of the Managing Director gave evidence of being a 50% shareholder until October 2010. After the breakdown of the relationship she moved in to the claimant’s house. The work place then became a totally different environment. The Managing Director didn’t want anyone to help her and swore he would destroy anyone who did. He threatened to leave her penniless. She told the Tribunal that he was never appointed as Managing Director, he appointed himself.
Asked about the issuing of cheques she said that sometimes employees would have to wait up to a month for to get paid. It was done by the Managing Director to make life difficult for her. Asked what the claimant was doing in her last few months of employment she said nothing much maybe just answering phones.
Respondents Case:
SM the Managing Director told the Tribunal that this entire situation had been absolute hell for him. He said that the claimant was an excellent worker. She was responsible for accounts, collecting monies and general duties right up until she left. The claimant refused to take any instruction or orders from him and as a result both their office doors were locked and all paperwork was left outside the relevant doors. He told the Tribunal that he signed all cheques except those of TM and she was removed as cheque book signatory. He had to have TM barred from entering the premises. Things became so bad for him that he had to attend his doctor. He ended up only going into the business at night to avoid confrontation. On one occasion he was assaulted by the claimant and her behaviour became unbelievable.
SM did give written warnings to the claimant on advice from his solicitor. He locked his office door because he was afraid that his computer was being sabotaged and his room also contained the recording equipment for CCTV. He said that the claimant would have been a good leader and would have considered leaving the business to her but it was clear because of the situation that she wasn’t staying.
Under cross examination he said that a change in operational procedures were brought about after the employees told him they were going sick if something wasn’t sorted. He had a meeting with them and they provided a list which would help alleviate their problems. He left the list outside the claimant’s door.
Nothing was done to undermine the claimant or change her work practices; it was just a change in him not going into the building during the day and a list drawn up by employees on how best to handle the situation. He had no powers to sack anyone and didn’t.
Determination:
There was a substantial conflict of evidence between the parties during the hearing of this case. However, on the balance of probability and based on their consistence, the Tribunal preferred the evidence of the claimant.
However, the Tribunal does accept that the claimant too bears a considerable responsibility for the consequences of her actions and the Tribunal must take this into account in measuring any compensation to be awarded under the Acts. The Tribunal consequently awards the claimant the sum of €20,000.00. The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)