EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UD842/2011
Employee - Claimant WT343/2011
MN952/2011
against
Employer - Respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr J. Horan
Ms M. Mulcahy
heard this claim at Naas on 22nd November 2012 and 7th February 2013
Representation:
Claimant: Mr. Rory deBruir, B.L., Mary Bennett & Co, Solicitors, Abbey House, White Abbey Road, Kildare, Co Kildare
Respondent: Ms. Catriona Byrne, Catriona Byrne & Co, Solicitors, 3 Millbank, Blessington, Co Wicklow
The determination of the Tribunal was as follows:-
Dismissal was in dispute. The respondent said the claimant walked out but the claimant said she was told to leave.
At the outset of the hearing the claimant withdrew her claim under the Organisation of Working Time Act, 1997.
The date of commencement was agreed as 16th April 2007.
Claimant’s Case:
The claimant told the Tribunal that she possessed a degree in Equine studies from Athlone Institute of Technology. Before her recruitment to the respondent company the claimant placed CV’s with an Equine Recruitment Agency. She was seeking an administration role within the industry and was employed by the respondent to do administration work and help outside on the farm.
The claimant’s main work duties were in the office. The claimant did not recall receiving a contract of employment although one was produced with her signature on it. It described the claimant’s position as a personal assistant and the contract stated that her normal place of wok would be in the office and part time in the yard.
The claimant was responsible for a lot of the general administrative duties involved in running a stud farm e.g. payroll and office administration.
When the claimant commenced employment herself and the respondent shared an office in the stable sheds. At a later stage she moved to an office beneath his. The only source of heating provided was a pot belly stove. The claimant was not allowed a plug in heater because it was too expensive.
If a staff member had a query they would bring it to the claimant’s attention and she would approach the respondent. The claimant described the respondent as very demanding and it was not an easy place to work. The respondent would not pay the rates for hotels but did not want to stay in bed and breakfast accommodation. The claimant would get phone calls at all hours of the day and night from the respondent and was always told that it was for something urgent. On some occasions the claimant received text messages at midnight asking her to bring in the paper the following morning.
The claimant’s contract stated her hours of work as 8-5. Initially this was the case but then breaks were cut and she never received her lunch break. She asked the respondent if she could finish her working day at 4pm to make up for the lack of lunch. The claimant felt that she was never off duty.
The claimant described an incident that occurred during her time off on a Sunday morning. She and her husband were due to attend his grandmother’s 80th party, at which they were due to partake in a family photograph. En route the claimant received a phone call from the respondent saying that he needed her to change flight bookings. By the time she changed the flights they were late arriving at the party and the photographer had left.
The respondent had outstanding payments due to creditors. The claimant was required to deal with these creditors who were angry and threatening to withdraw or deny their service. The respondent would lay the blame with the claimant by telling the creditors that the claimant was responsible for processing their outstanding payments and she was the reason for the delay.
The claimant told the Tribunal that the toilet facilities provided for staff were insufficient because it was located outside which meant the respondent’s dog, who was quite vicious had to be encountered. There were other facilities available to staff on occasion. If the staff apartments were vacant the toilets could be used by employees.
An incident occurred in relation to the toilets in the empty staff apartments. The claimant got a phone call from a staff member at 10pm one evening. The staff member told her that an employee had left a phone in their car which contained videos of staff in the toilet. The claimant told the employee to come to her the next morning. At this stage the battery had died so the claimant and her colleague went to inspect the toilet in question. They located a camera that was set up in a hole in the wall. The claimant phoned the Gardaí and reported the incident.
The claimant updated the respondent in respect of the incident and his response was one of laughter. When she phoned him to inform him that she had contacted the Guards he told her that he would now have to fire the employee in question and it was her fault. The employee was not dismissed. He no longer carried out work on the farm but he still handled horses going to the sales for the company. The claimant said the whole incident was ignored by the respondent and he did not appear to care.
In March 2010 the claimant left work early because she was feeling unwell. She attended work on the Saturday morning to work back the hours. On Monday another employee told her that the respondent said she went home early on Friday because she was suffering with a hangover. The claimant approached the respondent and asked that if he had a problem with her then he should speak directly to her. The respondent blew up and told the claimant to get out and leave the keys. The claimant understood this to mean that she was being dismissed. The respondent was aggressive towards her and used inappropriate language.
The claimant was upset by the situation and phoned her mother to tell her what happened. She did not think she had a job to go back to. That evening the claimant received a text message from the respondent saying that he wanted to meet the next day and discuss what happened. She agreed to meet him. He said he wanted to move on, she agreed and they shook hands.
Relations between the claimant and the respondent thereafter were not great and got progressively worse until December 2010.
On 2nd December 2010, the claimant was asked to summarise two years of company accounts into a one page bill. The claimant tried to explain that the information would not fit onto one page and he told her to shut up. The claimant told him that she could not do it and he said if you can’t do your job I’ll get someone else. The claimant asked him to clarify this statement by asking the respondent was he going to get some else. He said if you can’t do it, then yes. She took it from him that her job was no longer available.
The claimant left the respondent’s premises and as she left the weather conditions were quite poor and the respondent laughed at her trying to manoeuvre her jeep in the snow. The claimant phoned her husband and mother on the way home and told them that he’d done it again. The claimant was very concerned about her mortgage and Christmas.
The claimant did not receive any communication from or on behalf of the respondent. After a number of days the claimant contacted her solicitor who wrote to the respondent on her behalf on 9th December 2010. The respondent replied, through his solicitor, on 15th December 2010 stating the claimant walked out in the middle of a working day in what could only be viewed as a resignation. The letter went on to say that the respondent was willing to reinstate the claimant to her employment position. The claimant maintained that she did not walk out and the respondent told her to leave.
The claimant did consider the offer of reinstatement but felt unable to go back to the respondent’s employment after what had occurred and the contents of the solicitor letter. The claimant felt that although it was bad to have no money, the time away from the respondent and his constant phone calls was better for her and her health than going back to the atmosphere that existed in her employment.
During cross examination the claimant confirmed that she did not raise issue with the respondent’s language or the after-hours calls during the course of her employment because he was not easy to approach and there would be no benefit.
The claimant did not agree that she was the instigator of the incident which occurred in March 2010.
The claimant spoke both to her husband and her mother on 2nd December 2010. She was very upset and said 'he's done it again'. She told them the respondent had told her to leave and that he could get someone else to do the job. She had felt it was definite.
The claimant's husband contended that the claimant had gone over and beyond her role. She was constantly receiving text messages in the evenings and she was constantly stressed. The claimant could not switch off. Because of the previous incident in March 2010 he felt the claimant's relationship with the respondent could have been worse if she returned to work.
The claimant's mother felt that the relationship between the respondent and the claimant had so badly broken down that the claimant could never return to work for the respondent. She believed the respondent's offer of reinstatement in a letter dated 15th December 2010 not to be a genuine offer.
The claimant's husband contended that the claimant is enjoying her new job. She is not suffering from stress or worried about her work.
Respondent's Case:
The claimant commenced employment in April 2007. Initially she worked three days with the yearlings and two days in the office. Subsequently she expressed an interest in working full time in the office and the respondent agreed to this. She signed her contract of employment on 21st August 2007.
The respondent shared an office with the claimant for about a year and after that the claimant moved into a purpose built office. He had a good working relationship with the claimant. She was a trusted and valued employee. She took her tea break from 10 am to 10.30 each day and always took her one hour lunch break.
The claimant's hours of work were 8 am to 5 pm. She asked the respondent if she could finish work at 4 pm each day as she had to attend to her own horses. Between 4 pm and 5 pm was the busiest time of the day for the respondent. There was a verbal agreement between the respondent and the claimant that he could contact her between 6 pm and 8 pm in the evenings to discuss work matters.
When the respondent became aware of an incident of a camera being placed in the toilets he immediately spoke to the person who had placed the camera there. That employee admitted to it and apologised. The respondent told the employee he would have to let him go and told him to apologise to the two female staff. The respondent fully co-operated with the Gardai.
On 2nd March 2010 while in conversation with the claimant he got a strong smell of alcohol. After about one hour the claimant said she was not feeling well and asked his permission to return home. When a member of staff enquired later that day where the claimant was the respondent told him that she had gone home sick. When the employee enquired further the respondent replied that maybe the claimant had a hangover. The respondent did not say this in a derogatory manner. The next day the claimant quizzed the respondent about speaking to staff members about her and she said he was unreal and threw down her keys. She had received a call from the employee in question who asked her 'had she a hard night'.
The respondent contacted the claimant the following day and she agreed to meet him. She apologised and they shook hands and the claimant agreed to return to work the following Monday.
On 2nd December 2010 the respondent asked the claimant to prepare a VAT statement. He wanted the Irish and English VAT separated. When the claimant called him saying she had the statement ready the respondent noticed that it was not in the correct format. He again explained what he required. The claimant had still not done it correctly and he showed her how he wanted it done. The claimant said he was taking his humour out on her, that he was unreal and she then threw the keys on the desk. The respondent asked for the pin numbers to the Bank Account and the claimant said that his wife had them.
The respondent was waiting to hear from the claimant in the following days. He offered to reinstate the claimant some thirteen days later. The respondent did not dismiss the claimant. She left of her own accord. The claimant was issued with her P45 and monies owing to her the following January. The claimant has been replaced in her role.
Determination:
The Tribunal carefully considered the evidence adduced during the course of this two day hearing.
The Tribunal is satisfied that the claimant was entitled not to return to work when the respondent offered to reinstate her in a letter dated 15th December 2010. The cumulative actions of the respondent in the preceding year had resulted in a complete breakdown of trust and confidence on the part of the claimant in the respondent.
The Tribunal finds that the claimant was constructively dismissed on 2nd December 2010 and awards the claimant €23,826.00 under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal also awards the claimant €1,174.00 being the equivalent of two weeks pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)