EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE, UD1436/11
- claimant
Against
EMPLOYER - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Hennessy
Mr F. Dorgan
heard this claim at Waterford on 23rd April 2013, 20th June 2013 and 19th September 2013.
Representation:
Claimant:
Respondent:
Claimant’s Case:
The claimant worked for a Bank in the south of the country and worked in Branch D.
The claimant accepted that rationalisation affected all staff.
She was working through her lunch break and sometimes came to work while on leave in order to get the work done. The claimant wassigning some contract letters. She said thatcontract letters should be signed by a manager. She e-mailed these letters to the manager and he e-mailed them back to her but her signature appeared on the letters. She contended that it was best practice if the manager signed such letters.
The claimant dealt with a large loan application of €650,000. That account was intricate and complicated. She had to make the call on that application as she was unable to make contact with JF her manager. JF usually worked in the Branch D one day a week. The claimant was stressed and worried at work that she would make a mistake and she was constantly struggling with the work load. The finger had been pointed at her on an occasion that an attachment to a facility letter had been missing but it subsequently transpired that she had not made the mistake.
On 29th June 2010 she spoke to VK and sought a one to one meeting. At this meeting the claimant informed VK that the pressure of work was too much. In June 2010 the claimant enquired about voluntary redundancy but this was refused as her job was not at risk. She felt the office was closing in on her and she could not handle it any more.
The claimant’s annual review took place on 7th February 2011 and was rated with a 2. This was a lower rating than previous years and she was compared to other colleagues. She had never before been compared to others. She was upset by this and visited her doctor in February 2011
She raised a grievance on 21st March 2011.The claimant’s grievance was that she had a high work load, that the issues she had raised previously had not been adequately dealt with and that she had been given an unfair and unjust rating in 2011.Under her GP’s advice she tendered her resignation on 22nd March 2011 and stated she would work her required notice. She did not engage with the Employee Assistance Programme because she did not want to cause trouble.
The claimant secured permanent part-time work almost immediately after her resignationbut was made redundant from that position in September 2011.
The claimant’s grievance was upheld and confirmation of this issued to her on 26th April 2011 which was her final day of employment with the respondent. The claimant decided not to appealthat decision.
Respondent’s Case:
JF was the claimant’s Line Manager since early January 2010. He had a dual portfolio. He worked one day in Branch D. either Monday, Tuesday or Wednesday. He worked the bulk of his time in Branch C. A commercial official worked a five-day week in Branch C while the claimant worked part-time, three days per week, Monday, Tuesday and Wednesday. The claimant worked through lunch time but JF never insisted on this.
The claimant was committed and very diligent but she struggled with workload systems. JF said that he had worked with commercial officials who were better able to apply themselves.
The first time JF became aware of the claimant’s grievance was when HR contacted him looking for the file and asked about specifics.
In July 2010 JF met the claimant with VK. He wanted to see if he could ease the claimant’s workload and if she was interested in transferring to Branch C. It would be more streamlined and efficient. All portfolios could be centralised. One portfolio could be split between two commercial officials. The claimant reluctantly agreed to transfer. A decision was taken that the move would be deferred to the end of the year. The claimant’s rating of a 2 in her annual review was based on her continually struggling with her workload and on effectiveness of workload.
At no stage had JF been made aware that the claimant was suffering from stress. JF had dealings with other commercial officials but felt the claimant was distracted by challenges she had with systems and he challenged why she was not working more efficiently. The claimant had experienced difficulties processing applications and reviews and got frustrated. Other commercial officials did not encounter the same problems.
JF was surprised to receive the claimant’s resignation letter and asked her if she was certain she wanted to resign. The claimant has been replaced in her role.
VK is Area Manager since 2007 and had known the claimant. In June 2010 the claimant had asked him about a redundancy package. He enquired but none was available. The claimant seemedpetrified that she would make mistakes and her job appeared to be taking over her life. The pressure appeared to be coming from the claimant herself. It was VK’s suggestion that the claimant be offered a transfer to Branch C. The claimant was not overly keen on the offer of a four-day week. The claimant had taken on extra responsibilities. He expected the claimant to do her best in the hours she worked. JF had kept him to up to date on the claimant’s issues and performance.
JG is Director of Business Banking. He was identified as an independent and impartial Grievance Appeal Hearer. Following the upholding of the claimant’s grievance, he wrote to the claimant on 5th July 2011 and again on 15th July 2011 inviting her to attend a meeting to discuss her grievance appeal. The claimant did not attend any appeal hearing.
COS is a Senior Business Development Officer with the respondent and was the person who heard the claimant’s appeal against her end of year rating of ‘2’. The rating is based on an employee’s performance during the year and ranges from 1 to 5, 5 being the optimum rating. The majority of staff receive a rating of 3 and about 5% to 10% receive a 2 while very few ever receive a 5. A rating of 2 is underperformance and it is not unusual for staff to appeal such a rating. Therefore most of the appeals dealt with by COS were against a 2 rating and the majority of these appeals were found in favour of the employees.
In the matter of the claimant’s appeal COS found that proper procedures had not been followed in awarding a rating of 2 to the claimant insofar as she was not informed in writing during the course of the year that her performance was an issue and nor was she given an opportunity to address any deficiency in her performance. Accordingly COS awarded her a rating of 3 as this was the default rating in the absence of proper procedures. The claimant was informed of this by letter dated 26th April 2011.
COS was aware that the claimant had lodged her grievance in respect of the rating around the same time as she tendered her resignation but there was nothing in her resignation to indicate that she was resigning because of this grievance and COS did not link one with the other. COS recalled the claimant being very upset when he met with her.
During the course of examining the paperwork COS noticed a complaint by the claimant against JF and asked VK if he had dealt with that complaint and VK told him that he had not dealt with it. It was not within the remit of COS to deal with that complaint.
Determination:
Having considered the evidence adduced at the hearing and the submissions of the parties the Tribunal finds that the claimant left her job in circumstances where the respondent’s conduct drove her to resigning. This conduct includes in particular the following:-
- The claimant’s excessive workload.
- Stress resulting from signing off on contracts and loan documents.
- Disharmony in the office.
- The fact that the claimant worked mainly alone.
- The low rating given to the claimant’s performance for the year 2011.
- The failure of the respondent to provide any or any adequate remedies.
The remedy put forward by the respondent regarding the claimant’s excessive workload was that the claimant could work more than her three-day week. It was not possible for the claimant to avail of this remedy because of her family status.
The remedy put forward by the respondent in order that the claimant would be less alone and would have the company of a colleague was to transfer the claimant. Again this remedy would have impacted on the claimant’s family status.
The Tribunal is of the view that the respondent’s acceptance without demur of the claimant’s resignation indicates that the respondent was happy to see the claimant go.
Taking into account all of the above the Tribunal is satisfied that the duty of trust and confidence between the claimant and the respondent was irreparably damaged and the Tribunal finds that the claimant was entitled to consider herself constructively dismissed and which dismissal was an unfair dismissal. Accordingly the claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation.
The Tribunal finds that the claimant applied for the redundancy package because she saw this as a way out of her difficulties. However, the claimant did not satisfy the criteria for the redundancy package.
The Tribunal then considered the measuring of the claimant’s loss in order to determine the appropriate amount of compensation. The starting point for the Tribunal when determining the amount of compensation to be awarded to a successful claimant is that compensation can be awarded up to a maximum of two years’ normal remuneration (s.7(1)(c) of the Unfair Dismissals Act 1977, amended by s.6 of the 1993 Act). The criteria laid down in the Act for ascertaining the amount to be paid in compensation is in respect of any financial loss incurred by the claimant and attributable to the dismissal as “is just and equitable having regard to all the circumstances” (s.7(1)(c)(i ). When making this “just and equitable” evaluation the Tribunal has a very wide discretion and may take account of both parties’ conduct prior to the dismissal (see Carney v Balkan Tours Ltd [1997] 1 I.R. 153).
The respondent submitted that the claimant’s loss stopped once further permanent employment is secured. The respondent relied on Courtaulds Northern Spinning Ltd v Moosa [1984] ILRL 43 and on Susan O’Kelly v WYG Engineering (Ireland) Limited (UD Case No. 301/2011) a decision of the Tribunal. The Tribunal does not find that the employment secured by the claimant in the company. was permanent in the Courthaulds sense in that the claimant had been employed for significantly less than the 52 weeks that would have secured her the statutory benefit not to be unfairly dismissed bythe company. The Tribunal notes the two-step cumulative test in Susan O’Kelly that a new employment only stops loss once it is permanent and on comparable terms to the employment from which a claimant is unfairly dismissed. The claimant’s employment with the company. could not in any sense be said to be on comparable terms to the claimant’s employment with the respondent.
The Tribunal is satisfied that the claimant mitigated her losses from the earliest possible moment and the fact that the claimant was prepared to take employment at a considerably lower salary and work as an intern is sufficient evidence of efforts to mitigate her losses.
Accordingly, the Tribunal determines that the claimant is entitled to her losses as submitted and the Tribunal awards the claimant compensation in the amount of €57,540.68.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)