EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE – claimant UD2235/2011
MN2278/2011
WT914/2011
against
EMPLOYER – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. J. Revington SC
Members: Mr. E. Handley
heard this case in Dublin on 10 April 2013 and 6 January 2014
Representation:
_______________
Claimant(s): Mr. Andrew Whelan BL, instructed by:
Donal Taaffe & Co., Solicitors,
Malthouse Square, Smithfield Village, Dublin 7
Respondent(s): Mr. John Barry, Managing Director,
Management Support Services, (Ireland) Limited,
The Courtyard, Hill Street, Dublin 1
The determination of the Tribunal was as follows:-
Claimant’s Case
This was a claim of constructive dismissal. The claimant is from Slovakia. She came to Ireland in 2006. A friend helped her get a job as a cleaner. Her friend told her that to secure the job she had to pay €500 to the owner of the company. She paid two giros worth €250 each into a bank account with a company name. She could not remember the name. She signed contracts of employment for each company but did not receive copies. The contract of employment states hours of work as “up to 39 hours where required, Monday to Sunday”.
She worked at the same job for five years, though the name of the company changed twice during her employment. The owner of the original company was her manager throughout her employment. In April 2011 he told her that her hours were going to be cut, which she agreed to. However, two weeks later she received a letter from him stating that the times of work was going to change. She had previously worked 8 a.m. – 4 p.m. Monday to Thursday and Saturday. This was to change to afternoons only. Another employee’s hours also changed. The claimant had another job in the evenings which clashed with the new hours. She met the owner to ask him to change the shift. He said he couldn’t and asked her to see how it went for a while. She told him a further two times that she couldn’t work those shifts. She texted him and said that she could not work the hours so she was resigning which he accepted. She did not receive her P45 until she wrote to resign.
She did not get another job for eight months.
A former employee gave evidence that the owner required him to pay €500 to take up a job with the same company as the claimant. He began working with the company in 2005. He kept one of the giros that the owner gave him and produced this to the Tribunal. He resigned in 2008.
Respondent’s Case
Giving sworn testimony, JR (the respondent’s principal) said that cleaning had initially taken place from eight or nine in the morning to three or four in the afternoon. It was put to him that the claimant had said that it was necessary to pay five hundred euro to get a job. JR replied that he had got no cash. He had visited Romania, Bangladesh, Latvia and Lithuania. It had been “impossible” to get staff. Payments were made for flights and accommodation deposits. Staff just paid what they owed.
Regarding the reduction in the claimant’s hours, JR said that a client had sought the reduction due to lack of finances. The work went from 120 hours to 70 hours. The respondent wanted to go from cleaning on a full-day basis to just cleaning in late afternoons. Hours went from thirty-six to twenty-two or twenty-five. The claimant was not happy about the change. She had another job or it did not suit her social life. However, she started the revised roster and worked it for six to eight weeks. She never raised a grievance. JR was surprised when she eventually resigned but there was no animosity and he thought that she was going to better money elsewhere. He had not known of dayshifts being available at the end. In mid-2011 dayshifts had gone to late afternoon/evening shifts.
Under cross-examination, JR was asked about a May 2011 e-mail to him from the claimant in which she expressed dissatisfaction with working a later shift. He said that he could not recall it. He had some 180 staff of whom six or eight handled the HR work. Asked why one girl was let stay on an earlier daytime shift, JR said that he did not know about this. Asked when hours built up again, he replied that it was in about mid-August.
In re-examination JR said there would be additional work to cover sick leave or holidays but it would be difficult to get staff for it. They did not want to cross the Liffey for work. All clients were downsizing in terms of the amount of work they wanted from the respondent.
Questioned by the Tribunal, JR said that the respondent recognised a trade union but that he did not know about procedure involved in putting someone on lay-off.
Closing Statements
It was contended for the claimant that there had been a unilateral, fundamental breach of her contract. Since 2006 she had always had some thirty-six hours. It was submitted for the respondent that hours depended on the client and that, though the claimant had been working 37.5 hours, clients were cutting back in 2011 throughout Dublin City and not just in Smithfield where the claimant had worked. The claimant had worked the new roster for some six weeks. It was submitted that she had failed to discharge the high onus that was on her to establish that she had been constructively dismissed and that the allegation that payments had been made by employees to gain employment was just a malevolent attempt to tarnish an employer when expenses had been incurred relating to flights and accommodation deposits.
Determination:
The Tribunal did not find that there were grounds for believing that there had been a constructive dismissal. Consideration was given to the allegation that the claimant’s resignation had been influenced by employment elsewhere. She could not claim redundancy. She resigned and claimed constructive dismissal. However, the Tribunal is unanimous in finding that there was not a constructive dismissal established to the satisfaction of the Tribunal and, therefore, that the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
The claims brought under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, and the Organisation of Working Time Act, 1997, are dismissed because the Tribunal did not find the respondent to have breached the said legislation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)