EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Ciara McCarthy UD2050/2011
MN2072/2011
against
O'Shea, O'Lionaird Parnership
t/a Bebé Crèche
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Lucy
Members: Mr D. Hegarty
Mr O. Wills
heard this claim at Tralee on 12th June and 17th September 2014
Representation:
Claimant : Mr. Dan O'Connor.
Terence F Casey & Co, Solicitors, 99 College Street, Killarney, Co Kerry
Respondent : Sheila Treacy, IBEC, 84-86 Baggott Street, Dublin 2
Claimant’s Case:
The respondent operates a crèche and the claimant was employed as a Montessori Teacher from July 2008 until her employment terminated on 30th September 2011.
It was the claimant’s position that her terms and conditions were unilaterally changed by the respondent to such a degree as to render her dismissed from her original position. There was no prior consultation with the claimant in respect of the new terms and conditions of employment and she never signed up to these. The new contract being offered to the claimant was for a position as assistant to what she deemed to have been her original position. The claimant’s hours and consequently her pay were also to be reduced.
The claimant outlined her responsibilities as Montessori Teacher and these included such things as setting the curriculum and liaising with parents. This role was supported by an assistant. However the new role being offered to the claimant involved her being the assistant and a person who was up to then an assistant taking over the leader role.
New regulations had been introduced earlier in the year which meant that the respondent could claim grants for children attending the crèche. This was a two tier system whereby there was a payment of either €65 or €75 per child per week. The payment of the higher rate depended on the qualifications and experience of the classroom leader. The claimant contended that although she did not have the required level of qualification she did have the requisite experience and as she was studying for the higher qualification she met the requirements of the regulations to fill the position of class leader in respect of the higher grant. Furthermore, her colleague who was to be the classroom leader although being qualified to the higher level did not have the requisite experience. The claimant told the Tribunal that her colleagues were aware that she was studying for the higher qualification but she could not say if the respondent was aware of this fact as she had not told them directly.
There was some communication between the claimant/her solicitor and the respondent/their solicitor and claimant did not return to the crèche after the summer break 2011.
The claimant has since opened her own crèche and the process of opening this crèche began after the claimant believed her employment with the respondent had ended. Details of the claimant’s income was provided to the Tribunal
Respondent’s case:
It was the respondent’s position that the changes in terms and conditions of employment offered to the claimant were not such that she was being demoted. The new role offered to the claimant was to be an expansion of her previous role and the respondent was still going to follow the Montessori framework. However restructuring was required in order to qualify for the higher grant and that was why the respondent named the person with the higher qualification as classroom leader. The respondent confirmed that the person named as class room leader in place of the claimant did not have the requisite experience.
The respondent gave the new terms and conditions of employment to the claimant in May 2011 and it was some 7 weeks before the claimant corresponded in relation to her objection to this new contract. Therefore the respondent felt that although she had not signed the new contract the claimant had not objected to or sought consultation in a reasonable time frame.
The respondent contended that the claimant had already began the process of opening her own crèche before deciding to resign from her position with them and she therefore resigned of her own volition
Determination:
Having carefully considered the evidence adduced at the hearing the Tribunal finds that the claimant was unfairly dismissed from her employment with the respondent by way of constructive dismissal. Given the circumstances leading up to her termination of employment it was reasonable for the claimant to conclude that she had no alternative but to resign and therefore she was constructively dismissed.
The Tribunal is satisfied that the change in the terms and conditions of employment amounted to a demotion and reduction in hours per week/pay for the claimant. There was a history of difficulties between the claimant and the respondent in respect of pay and other issues which may have impacted on the claimant’s decision to resign. However, notwithstanding that, the decision by the respondent to unilaterally change the claimant’s terms and conditions of employment to such a large degree without prior consultation or agreement was so unreasonable as to make it impossible for the claimant to continue as an employee.
The Tribunal considered the claimant’s loss together with her efforts to mitigate that loss and in all the circumstances awards the claimant €15,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
In respect of the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 the Tribunal finds that as the claimant did not give the respondent notice of her intention to resign there is no obligation on the respondent to pay her in respect of notice and therefore the claim under this Act fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)