EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE RP1599/2011
- claimant UD1222/2011 MN1316/2011
WT504/2011
Against
- EMPLOYER respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr J. Horan
Mr A. Butler
heard this claim at Dublin on 5th March 2013 and 26th July 2013
Representation:
Claimant:
Respondent
Claimant’s case:
At the outset of the hearing the claimant withdrew his claims under the Redundancy Payments Acts, 1967 to 2007, Minimum Notice and Terms of Employment Acts, 1973 to 2005 and Organisation of Working Time Act, 1997.
The complaint put forward by the claimant’s representative is one of constructive dismissal. There was dispute in respect of the claimant’s date of commencement with the respondent company.
The claimant was employed as a member of the cabin crew for the respondent company. He enjoyed working as part of a team. He became a full time member of staff in 2008 and his duties remained the same as in his first year of employment.
The claimant told the Tribunal that he did not experience any difficulties from 2007 to 2009 apart from some sick leave. His sick leave became an issue and in March 2009 he received a probation letter. He found this hard to understand because his sick leave was certified. In November 2009 the claimant was on certified sick leave for 2 weeks.
An incident occurred in February 2010 whereby the claimant could not produce his passport when requested by his cabin supervisor. As a result he was taken off the roster and not allowed to fly until he got his passport. The claimant did not understand the problem.
The claimant felt that issues began to arise with his supervisor, MC, from February. At the start of the day the team would have a briefing during which they would be asked a number of security questions and the claimant began to feel singled out by MC. He also felt that he was treated differently by her and he didn’t get his breaks. He did not enjoy working with her and felt physically sick.
The claimant did not address the issues directly with MC but on 25 June he brought it to the attention of VH. He attended a meeting with VH and told her he not happy with MC. On another occasion VH saw that the claimant was upset and asked if he needed to be offloaded. He told her he did not want that and that he was feeling bullied on the aircraft. She replied that “we are all adults and need to get on with it”.
The claimant did not get any resolution from VH and he was then off for a few days, he got an ear ache and then he left the respondent company. The claimant told the Tribunal it was suggested that he would get a roster change but that never happened. The claimant did not contact anyone else in the respondent company in respect of his issues.
The claimant drove to Shannon to fill out resignation form. He handed it to VH. He also phoned crew control and told them he was leaving because of an earache. The claimant felt stressed out because he had to work with MC and did not want to leave his job.
During cross examination the claimant confirmed that his date of commencement with Ryanair was 1st August 2008 upon completion of one year with an employment agency. The claimant agreed that he worked for a number of different respondents prior to his employment with Ryanair, none of which suited his background. During September 2006 and January 2007 the claimant confirmed that he took a rest / career break from work.
The claimant confirmed that he made the complaint to the EAT because he felt bullied and harassed by MC. The claimant made VH aware of his feelings in June when he told her that he felt bullied by MC. He then filled in an inflight special report form on 1 July 2010 in which he said that MC repeatedly spoke to him as if he was stupid, and was constantly negative towards him. He wrote that he had already spoken to VH about this but that it had not improved and that if it continues he would make a formal complaint and refuse to work with her. The claimant acknowledged that up to 1 July 2010 the respondent could not deal with the complaint.
The claimant confirmed his knowledge of the respondent’s disciplinary and grievance procedure.
The claimant agreed that he did not follow stage 1 of the grievance procedure because his immediate supervisor was MC, whom he felt was bullying him. He made a complaint to VH, the base supervisor. Stage 2 allowed the claimant to approach HD but the claimant never availed of this option while still in employment with the respondent company. The claimant felt that he had brought the complaint to VH and she would deal with it. He did nothing in relation to the complaint between 1 July and 23 July, during which time complaints were made by MC about the complainant. At a meeting on 23 July 2010, she asked him to leave the situation lie for a period of 30 days and during that time she would speak to MC about the matter. He agreed that the respondent would take the issue of bullying very seriously.
The claimant agreed that he had previously received warnings from the respondent in respect of absences and was given an opportunity to explain the absences. These warnings were issued during the claimant’s probationary period which expired on 1st August 2009, at which point he was made permanent.
The claimant confirmed that MC was the only member of staff that he had issue with but agreed that he had sent a letter of complaint on 23rd October 2009 against AJ, a trainer. The claimant could not remember how the respondent dealt with this complaint or if he was satisfied with the outcome.
The claimant confirmed that he would have taken MC’s position as number 1 within the company if it were offered to him. The claimant had been sent on senior training and presumed that on completion of same he would be given a senior position. The claimant denied that he was upset about MC being given the number 1 position instead of him. The claimant agreed that he saw himself and his career progressing in the respondent company.
The claimant accepted that he could not travel to the UK/Europe without his passport and agreed that it was not MC’s fault that he could not locate his passport, causing the incident in early 2010. The claimant and MC were required to fly together approximately 15 – 16 times per month. Prior to June 2010 the claimant had not lodged any complaints against MC nor had he made the respondent aware of any issues with MC.
The claimant confirmed that he wrote a letter on 25th June 2010 pointing out a number of faults in MC’s behaviour while carrying out her duties. The claimant maintained that he lodged his complaint about bullying and harassment verbally to VH in June prior to a briefing. He was feeling sick and she asked him if he wanted to offload himself from duty. He declined the offer. The claimant explained that he felt he could not make a complaint because he was feeling sick and unable to deal with the situation. The claimant accepted that the respondent was not in a position to deal with his complaints if they were not aware of them.
The claimant denied any knowledge of complaints having been made against him by MC from 1st July to 7th July. Based on the existence of cross complaints the respondent decided to investigate. The claimant attended an investigative meeting on 23rd July 2010 based on issues raised by MC. VH chaired the meeting and advised the claimant that she had also met with MC. At no stage during the meeting did the claimant inform VH that he felt bullied or harassed
by MC. The claimant was advised by VH that they would meet again in one month’s time to review the situation.
The claimant confirmed that he resigned from his position within the respondent company on 27th August 2010. He told the Tribunal that his reason for resigning was that he felt he was being bullied in work. When questioned further the claimant confirmed that he was also told by his doctor not to fly due to an ear infection and this was one of the reasons he provided to crew control.
The claimant confirmed that at that point in time he had enough of flying and could not cope with the situation anymore.
The claimant agreed that he sent an email to HD on 8th September 2010 and confirmed that some of the issues raised in this email had never been reported to anyone in the respondent company prior to his resignation.
The claimant accepted that he received correspondence from HD on 9th September 2010 which addressed all of the issues raised by him in his email of 8th September. He also accepted that HD’s record of events was an accurate reflection of what occurred and at no time prior to his resignation did he discuss any of the allegations raised in his email with VH.
The claimant told the Tribunal that when his employment ceased with the respondent at the end of August, he commenced a prenursing course in September in the local area. He attended this course until May 2011. He did not look for work while attending this course. In approximately September 2011 the claimant began to apply for cabin crew vacancies but could not provide details of these applications or specific dates.
At the conclusion of the case for the claimant, the respondent submitted that the cliamant had not met the required standard to succeed in his claim of constructive dismissal. It was submitted that at its height, there was not a dismissal within the definition of section 2 of the Unfair Dismissals Act, 1977 as amended (“the Act”), i.e. that the termination by the employee of his contract of employment with his employer did not occur “in circumstances which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate his contract of employment without giving prior notice of the termination to the employer.”
Determination
The Tribunal accepts that the claimant knew of the grievance procedure of the respondent. He had used the procedure before. He had raised issues in relation to MC, and if he felt that it was not adequately being responded to, he could have escalated the matter and made a formal complaint, which he had said that he would do if the issues he raised were not dealt with. He chose not to. He gave no notice even of his intention to resign if the matter was not dealt with more expeditiously.
The respondent had met with the claimant and MC and had sought a month in which to resolve matters. There had been grievances raised by both the claimant and MC. During this month, the claimant went on sick leave for an earache and then resigned, citing the earache. When he complained after resigning, including in relation to a historic incident with another supervisor, his issues with MC and his earache, he was invited to attend a meeting with the respondent which he refused to do.
The Tribunal accepts the submission of the respondent that the test in relation to a constructive dismissal is that the actions of the employer must be such that they constitute a fundamental breach of the employment relationship, that is, a significant breach going to the root of the contract such that it allows the employee to treat themselves as discharged from further performance of the contract, as outlined at para. 19.06 of Redmond, Dismissal Law in Ireland (2nd ed.).
The Tribunal does not accept the claimant’s submission that the case of Memorex World Trade Corporation v. Employment Appeals Tribunal [1990] 2 I.R. 184 must lead it to dismiss the application of the respondent. That case concerned a dismissal simpliciter, rather than a constructive dismissal, and a judicial review application by the respondent on foot of a successful application by a claimant after the case of the repsondent had been presented. That case was decided without the evidence from the employee, and solely on the basis of the credibility of respondent company. These factors, absent in the case before this Tribunal, led Carroll J. to conclude that the Tribunal in that case should not have made the determination that it did.
In the instant case, however, the Tribunal concludes that even if it assumes that all matters in controversy are resolved according to the evidence in favour of the claimant, the actions of the respondent cannot be viewed as constituting a fundamental breach of the contract and constituting a dismissal within the meaning of the Act. The cliamant had not invoked the grievance procedure, and the informal issues that he had raised were being dealt with by the respondent. If that was not satisfactory, he should at the very least have escalated the matter.
In all of the circumstance, the case of the claimant must fail
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)