EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
EMPLOYEE - Appellant UD2322/11
against the recommendation of the Rights Commissioner in the case of:
EMPLOYEE Appellant
and
EMPLOYER Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr G. Hanlon
Members: Mr T. O'Grady
Mr J. Maher
heard this appeal at Dublin on 22nd April 2013 and 14th October 2013.
Representation:
Appellant: Mr. Des Ryan BL instructed by Donal O Scanaill & Co, Solicitors,
Columba House, Airside, Swords, Co Dublin
Respondent: Ms. Caitriona Forsythe, IBEC, Confederation House, 84/86 Lower
Baggot Street, Dublin 2
On 22nd April 2013
Mr. Tiernan Doherty, IBEC, Confederation House, 84/86 Lower Baggot
Street, Dublin 2
On 14th October 2013.
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of an appeal by an employee appealing against the recommendation of the Rights Commissioner reference r-109165-ud-11/JC dated 29th November 2011.
Appellant’s Case
The appellant told the Tribunal that she commenced employment on the 1st May 2008. A transfer of undertaking took place in September of 2008. The respondent provided assistance to passengers with reduced mobility and ensured that they were in the correct areas and had the correct documents. She continued to work a long shift of eight hours per week with company GC. The manager of the respondent SW asked her to complete a form and he told her to leave blank the space for other employer on the form. She assumed that it was okay for her to continue working with GC. She did not receive additional clarification from the respondent regarding concerns with GC.
Other employees undertook additional duties as well as undertaking duties for the respondent. SW knew that she worked for a different company and if there was a problem with this arrangement he would have brought it to her attention.
She was not provided with a contract of employment on the 29th September 2008. Her colleagues worked in several areas as well as undertaking duties in the respondent, one worked in the business lounge and another in the VIP passenger service. These colleagues undertook a range of different roles in conjunction with their duties in the respondent. In September 2010 a meeting took place, the purpose of which was to familiarise staff with their areas of responsibility. Mr. G was the owner of GC and she reported to him. AC was supervisor and she was responsible for overseeing GC if Mr. G was away. LD was second in command to AC.
After the transfer of undertaking nothing really changed and she continued to work with the respondent and GC. She got to know more staff and she used the respondent’s card for clocking in and out. She did not encounter any problems in undertaking her day to day duties. After the transfer of undertaking she worked 35 hours a week for the respondent and 8 hours for GC. She continued to undertake her duties without incident for the next twelve to eighteen months. She had a good working relationship with the new employer and the transfer of undertakings went smoothly.
The issue of her continuing to work for GC was raised. The security manager of the respondent DM told her that there was a conflict with her working in the business lounge. He was not happy that she posed a security risk and a liability. She wondered why she was singled out and she told him that other employees were working in other roles in the airport. She requested clarification from DM and he made reference to CR who recognised her. DM told her it was not acceptable from the respondent’s point of view for her to be working with GC and that she would have to resign her position with GC. DM told her that he had received an instruction from the head office in the UK that she needed to resign.
After she was told to resign she spoke to B in GC who told her that she was not a security liability as she paid tax. He encouraged her to remain on in GC and relayed the message to DM who told her that he would look into it. If the matter was urgent she would have been instructed to resign immediately. She was on holidays in 2010 and on her return she was summoned to a meeting on the 4th February 2010. In attendance at the meeting were DM, FM, HR and LD. She was not given prior notice of this meeting. At the meeting issues were raised regarding her ID which she used to get to airside.
She was the sole earner in her household. She did not understand why after all this time an issue was raised. It would not be possible for her to give up her job with GC. She felt she was being singled out and Ms. D was not treated in the same manner as she was. She was very surprised by the disciplinary which took place on the 4th February 2010. She was informed that she would need to give her notice to GC as soon as possible. She informed the respondent that she had not done anything wrong. The respondent insisted that she give up her part time job. After the meeting she continued to undertake her daily duties with GC.
She did her shift in the BMI lounge for GC and Ms. D in the respondent asked her if she worked that day and if so what time. The co-ordinator Ms. D told her she could do her shift in the lounge and sometime later she approached her and asked her would she cease working. She was to remain on the premises. Ms. D wanted to know whose pass she was using and she had a DAA pass. She told the appellant that the respondent was willing to put their logo on the front of her badge. She did not want to be seen to do anything wrong. She had responsibility to both the respondent and to GC. She was given an assurance that a pass would be forthcoming the next day with both logos.
Then she was asked to call in as DM wanted to speak to her. She was asked to hand in her pass by DM and the airport police escorted her off the premises. She felt degraded and this occurred in a lounge full of people and there was no reason whatsoever for this. After the incident she was told that there would be a disciplinary hearing with DM. She was suspended and told that the respondent would be in touch with her. She was never informed that she could be suspended.
Following that she tried to liaise with a trade union representative regarding an investigation. On the day she attended an investigation her trade union official union went to speak to DM to get a postponement and the meeting did not take place. The trade official told her she was better off to go home and she was still suspended. The disciplinary was rescheduled for another date.
After this her mental health suffered, she was anxious and depressed and she did not go outside the door for two months. She felt that the respondent wanted her to resign. She did not resign her position with GC as she felt it would be rash. She felt she had to get better so she could stand up for herself. After that the respondent asked her to come in for a chat to speak about visiting the respondent’s doctor. She was very anxious when she heard about this and she was accompanied by FM and she was shown in by M. She was on medication for depression and anxiety and she felt that she needed someone to assist her. The respondent wanted to know when she would be available. It seemed that the respondent wanted her back to work regardless of the mental state that she was in.
She had lost faith in the company and she did not think it would be in her best interest until she was certain in her own mind that she was ready for it. She remained on sick leave and continued to furnish medical certificates to the respondent.
On the advice of her therapist the best course of action for her to take was to leave the situation she was in completely. She did not believe that anything was going to change. The respondent just wanted her back at work. She began to feel better in herself and she regained her confidence. She knew things wold have to change and she had to get away from the situation that she was in. She felt that she had done all she could do and the respondent was not willing to apologise to her for the way she was treated. She received no response from the respondent when she submitted her letter of resignation on the 2nd March 2011. She obtained alternative employment on 3rd March 2011 at a much lesser rate of pay.
In cross examination she stated that she signed a form to indicate that she received the employee handbook. She signed a form to obtain her airside pass. She had a number of managers in the respondent. DM believed that SW knew that she was working for another company. She agreed that if DM saw her working airside he may have concerns about that. In September/December 2009 DM asked her about going working in airside. The pass she had was the property of DAA. She tried to gain clarification first from the DAA. She asked DM why she was singled out. DM and M were aware that she had a shift to do that day in GC. She stated that she attended a meeting with her trade union representative and M regarding the security pass issue.
In March 2010 she was ill and the disciplinary process was suspended. She was not asked to bring anyone to the meeting with her. She was asked to drop in for a chat. A meeting was arranged on the 20th August to discuss a return to work. She did not reply to the respondent letter dated 31st August which was sent on the 29th September. There was no manager other than M and W that she could have raised the issue with. There was not another level of management that she could raise her concerns with. The option was resignation. There was no point in arranging another meeting as she was not listened to at the first one. At the meeting it was agreed that another meeting would take place and she could discuss it further. This meeting never took place.
In re-examination she stated that she had said everything she had to say to Ms. M and Ms. M told her that she would be in contact with her.
In answer to Tribunal questions he stated that she that a previous grievance with the respondent which was not resolved. She worked with the respondent and GC a year before the issue of the pass was raised. She saw Mr. M on a daily basis.
Respondent’s Case:
DM is Dublin Airport Service Manager and four managers’ report to him. The appellant also reports to him. All persons operating in restricted areas in the airport are required to hold an airside pass. All applications for airside passes are made by the respondent on behalf of employees to the DAA. The pass contains the employee’s photo, ID No. and the respondent’s logo. An employee is not permitted to use the pass outside of working hours. This is a breach of security.
Five employees including the appellant transferred from GC to the respondent company.
It September 2009 SW observed the appellant working in the BMI lounge and brought this to DM’s attention. DM tried to resolve the matter informally and amicably with the appellant and requested her to cease using her airport pass while working for another company. He offered the appellant additional hours if she resigned her position with GC. He did not put this in writing. DM subsequently brought the matter to HR’s attention.
The appellant was invited to an investigatory meeting on 4th February 2010. Both DM and FM (HR) were in attendance. It was highlighted to the appellant that she should not be using the respondent’s pass while working for another employer. The appellant agreed not to use the pass until matters were resolved. However, following this meeting the appellant was subsequently observed using the pass on three separate occasions.
It was on the third occasion, 11th February 2010 that DM met the appellant in the back kitchen of the BMI lounge. The appellant had been fully aware that she was unlawfully using the airside pass. DM requested she hand over the pass which the appellant did. As the appellant was not in possession of an airside pass the airport policy was informed and an airport security official escorted the appellant off the premises. The appellant was suspended on full pay pending an investigation.
The appellant then commenced a period of long term sick leave. DM left matters to HR.
FM was HR Manager during the appellant’s tenure. In January/February 2010 FM became aware that the appellant was working additional hours for another company and using her airside pass. FM was most concerned.
Together with DM she met the appellant on 4th February 2010. The appellant’s use of her airside pass outside her working hours for the respondent was highlighted to the appellant. FM stressed the importance of the appellant only using the airside pass while working for the respondent. She subsequently confirmed this in writing to the appellant on 23rd February 2010.
FM was informed that the appellant continued to use the airside pass and requested the appellant attend a disciplinary meeting. This meeting did not take place as the appellant commenced a period of sick leave on 1st March 2010.
As the appellant’s medical certificates cited her illness as work related stress she was referred to an occupational health specialist in July 2010. Following receipt of the specialist’s report, FM invited the appellant to a Return to Work Meeting on 20th August 2011. During the course of the meeting FM discussed the issues surrounding the use of the airport security pass for two companies, the possible insurance liability implications should an individual be involved in a work related accident and which company would be responsible.
The appellant confirmed that she would be happy to return to work when/if the matter was satisfactorily resolved and after consultation with her doctor certifying her as fit to return to work.
FM subsequently wrote to the appellant on 31st August 2010 clarifying the situation regarding the airport pass. The appellant was asked to restrict her use of the airside pass for the respondent’s business only. In that letter FM said that the respondent would not advance with disciplinary proceedings upon the appellant’s return to work on the proviso that she adhere to the respondent’s request to use the airside pass during her working hours with the respondent. FM also stated that the respondent would also look into the possibility of the appellant working additional hours for the company.
As the appellant did not respond to this letter FM again wrote to the appellant on 29th September 2010. The appellant then sought legal advice and her legal advisor sought proposals to compensate the appellant. The respondent wanted to resolve issues and again requested the appellant to adhere to the respondent’s regulations regarding the airside pass.
FM was surprised to receive the appellant’s letter of resignation and she took it at face value. She did not follow up on it.
Determination:
The Tribunal is not at all satisfied with the way the Respondent Company handled matters. The Tribunal accepts that the claimant’s work position with GC was well known to the Respondent for a considerable period of time since the Respondent became her employer in 2008 and further the issue of the airside identity card did not seem to present a problem for the DAA security and the DAA who were in fact the owners of the airside pass and not the Respondent, as the Respondent mistakenly believed. The Tribunal finds it unusual that representatives of Respondent company did not seem to notice the “logo issue” on the airside pass for a considerable period of time and seemed compelled to act only when an overseas manager spotted the Claimant in a Green Caps uniform with the Airside Identity bearing the Respondent’s uniform.
The Tribunal is satisfied that the de facto situation was well known to the Respondent for a considerable period of time and consequently the manner in which the Claimant was removed from the location of her other employer by the Airport police at the request of the Respondent was inappropriate and disproportionate.
In this case the Tribunal has come to a majority decision with Mr. O’Grady dissenting.
Accordingly, by the afore-mentioned majority the Tribunal on balance finds that the appellant was constructively dismissed from her employment and upsets the recommendation of the Rights Commissioner. The Tribunal awards the appellant €10,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)