UD2267/2011, RP2872/2011, MN2314/2011

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms P. McGrath BL

Members:        Mr C. Lucey

Mr J. Flannery

heard these claims at Dublin on 16th April

               and 11^th & 12^th November 2013

Representation:

_______________

Claimant:                     Ms Aoife Stack BL, instructed by:

                                    Mr Martin Lavin EA Ryan & Co Solicitors

Bridge Street, Dungarvan, Co. Waterford

Respondent:               Mr Tom Mallon BL, instructed by:

Ms T Kelly

The determination of the Tribunal was as follows:-

Determination:

The Tribunal carefully considered the evidence heard over the course of the hearing of this case.

The claimant’s claim is one of constructive dismissal. In such circumstances the burden of proof will rest with the claimant to show that she acted reasonably and that the actions of her employer were such that the only reasonable cause of action open to the claimant was to tender her resignation. The claimant did, in fact, tender her letter of resignation on the 8^th of November 2011. The Tribunal must look at all the facts surrounding this resignation and leading up to it to determine its reasonableness.

The claimant commenced her employment with the respondent in and around 1990. Over the years the body for whom the claimant had worked had morphed into different entities but ultimately the claimant worked for Employer. Which had been separated out of the Employer structure in 2010 and was, in effect, a stand-alone business. The claimant’s service remained intact through the different changes and, by 2011, the claimant had twenty-one years’ employment.

Over the years the claimant had worked her way up to a management position and was on a salary of circa €61,000.00.

The claimant had become unhappy with perceived difficulties she was having with workplace colleagues in 2005 and 2006. Ultimately, the claimant faced an allegation of being a bully which said allegation was found to be unsubstantiated in and around November 2006.

There can be no doubt that the workplace had become very difficult for the claimant in the aftermath of these matters being investigated. The respondent company did provide for mediation services to allow the claimant and her accuser overcome their evident dislike of one another.

The claimant’s place of work was on Dawson Street in the city of Dublin. Two separate office buildings made up the workplace – one in Dawson Street and one in Nassau Street. It is common case that these buildings were very close to one another and that the workforces would be in close contact with one another. Dawson Street operated the sales end of things whilst Nassau Street operated the support end of things.

The claimant was in the workplace at the start of 2007 but continued to feel isolated within that position.

The claimant went out on stress-related sick leave from the middle of 2007.

The claimant remained out of the workplace for three years. In the intervening period the claimant left Dublin and moved to Waterford. The claimant appears to have had the good fortune to qualify for the permanent health scheme in place which allowed the claimant receive an income of sorts during this period. The claimant had also been paid contractual sick leave by her employer for a period of this three-year stretch. The Tribunal notes half-pay was extended gratuitously by the company up to March of 2008.

The claimant had moved to Waterford in or about October 2007. This was a personal choice made by the claimant and unconnected with her workplace which continued to be in the Dawson Street/Nassau Street area. It does seem that the claimant had notified her employer of her move to Waterford and a letter from Employer from ED (the HR partner) indicated a willingness to examine a transfer request to a Employer branch closer to the claimant’s new residence (21^st of December 2007).

In fact, the issue of an alternative placement went dormant for well over two years.

During this period, the claimant sought and received appropriate medical attention and it is apparent from the claimant’s own evidence that she believed that a return to the Dawson Street office would only ever be detrimental to her health. It is noted that the medical reports state that an alternative work setting would be “helpful” and “preferable”. However, this seems to be as much about accommodating the claimant’s move to Waterford as to do with a potential risk to health if the claimant returned to the workplace which she had left three years earlier.

By 2010, of course, the world of banking and financing was an entirely different place to that when the claimant had gone out on sick leave. By October of that year the claimant had been independently deemed fit to return to the workplace.

All the medical reports recommended a gentle and phased return to the workplace with an emphasis on keeping the claimant separated from the person or persons from whom she perceived her main source of stress stemmed.

The Tribunal has considered very closely the evidence of ED in this regard. Ultimately, the burden fell to ED to ease the claimant back into the workplace. There can be no doubt that ED held out the hope that there was a possibility of a transfer to a Employer outlet closer to the claimant’s new home in Waterford. ED gave evidence to the extent that transfer applications were not unusual. However, by 2010 things were different and Employer was trying to reduce staff numbers and would not have seen an employee of Employer as being part of their responsibility or workforce. In any event, ED gave evidence that there were no openings locally. One of the difficulties would have been placing the claimant, who was on a relatively high salary, into a local branch. There simply wasn’t the position commensurate with the salary. Neither the claimant nor ED looked at the idea of taking a drop in salary and taking a less demanding job. This point may be moot, though, as the evidence was that there were no positions available local to Waterford.

Ultimately, and with what can only be described as bad pre-Christmas timing, the claimant was offered a job back in sales support in Dawson Street which said position was due to commence in January i.e. upon the cessation of the Permanent Health payments. The Tribunal accepts that the letter of December 23^rd from ED was blunt and did not reflect the considered thought ED says she put into proposing this position. In her evidence ED states that she had really put a huge effort into locating an alternative venue and that, once it became apparent that that would not work, ED had to focus on the only workplace from which Employer operated and find a role which would hopefully not bring the claimant into contact with the lady who had previously made an allegation of bullying.

Up to March 2011 the claimant was, in fact, in the process of appealing the decision to stop the Permanent Health payments which she had been receiving for the previous two years. The claimant never engaged with ED from HR on the day-to-day reality of returning to the Dawson Street workplace and how this could be done so as to not affect the claimant’s health. The claimant was adamant then and continued to be adamant that she would never return to the Dawson Street workplace and that, if no other alternative could be found, then she had no option but to tender her resignation which she duly did in November 2011.

The Tribunal finds that the respondent was not obliged to find the claimant alternative employment in the Waterford area in circumstances where the respondent’s principal place of operation was Dawson Street and Nassau Street in Dublin. The Tribunal finds that it is regrettable that the respondent had opened itself up to the possibility of transferring the claimant to a branch of a bank from which the respondent had broken away some years earlier. The suggestion created an unrealistic expectation in the claimant’s mind. The claimant had never been trained in branch banking and it was unrealistic of the claimant to expect her employer to put her 20 years’ training, expertise and talent to anything other than a position commensurate with her remuneration. The Tribunal accepts that if the claimant wanted to return to work with the respondent then the only option was to return to the company headquarters (from which the claimant had always worked).

There can be no doubt that the respondent knew or ought to have known that the claimant’s disposition was delicate and that best practice would have been a supportive and phased re-introduction to the workplace. The Tribunal does know that mediation was offered by letter of the 8^th of June 2011. However, the claimant, through her solicitor or on her own behalf, never engaged with the respondent to determine how any re-introduction back into the workplace might operate. We cannot know the lengths the respondent might have gone to ameliorate the situation. The Tribunal notes that the question of working in Nassau Street as against Dawson Street - raised in evidence before it – was never put to the employer between December 2010 and November 2011.

On balance, the Tribunal finds that the claimant was unreasonable in her demands not to be returned to the Dawson Street/Nassau Street area. The claimant point-blank refused to consider the option and point-blank refused to engage in any talks which might render a workable solution. The Tribunal cannot know if an engagement might have given rise to a workable solution but finds the failure to so engage was unreasonable. At all times the respondent through ED was willing to talk and support. The claimant herself was the party refusing to even consider the option put to her. The claimant therefore was not constructively dismissed.

The claims under the Unfair Dismissals Acts, 1977, the Redundancy Payments Acts, 1967 to 2007, and the Minimum Notice and Terms of Employment, 1973 to 2005, fail.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)