UD1711/2012, PW243/2012, TE126/2012, TU126/2012

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

PAYMENT OF WAGES ACT, 1991

TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 TO 2001

EUROPEAN COMMUNITIES (PROTECTION OF EMPLOYEES ON TRANSFER OF UNDERTAKINGS) REGULATIONS, 2003

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr T. Ryan

Members:     Mr D. Peakin

                     Mr N. Dowling

heard these appeals at Dublin on 11 November 2013

Representation:

Employee:

                    Mr Brendan Archbold, 89 Philipsburgh Avenue,

         Fairview, Dublin 3        

Respondent:

         Mr Andrew Cody, Reidy Stafford Solicitors,

         1-3 Moorefield Terrace, Newbridge, Co. Kildare

The determination of the Tribunal was as follows:

These cases came before the Tribunal with the employee appealing against two decisions and one recommendation of a Rights Commissioner R-119476-PW-12/JT, R-119167-TE-12/JT and R-119480-TU-12/JT under, respectively, thePayment of Wages Act, 1991, the Terms of Employment (Information) Acts, 1994 to 2001 and the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003.

The employer appealed a later recommendation of a Rights Commissioner R-122612-UD-12/JT under the Unfair Dismissals Acts, 1977 to 2007.

The employee worked as a cleaner at a medical campus (the transferor) in Naas from July 2009. Following a transfer of the undertaking which occurred on 1 December 2011 the cleaning function transferred to the respondent as transferee. On 1 November 2011 the respondent’s operations manager (OM) wrote to the employee to advise her about the transfer. This letter stated that the employee’s terms and conditions would be maintained. Of the three people employed on cleaning at the campus two were to continue at the campus the third, which turned out to be the employee, was required to move to a different location in Naas. The employee was further advised that post transfer pay would be on a fortnightly basis as against the weekly basis with the campus.

The contracts of employment provided both by the transferor and the employer were identical in relation to place of work and both provided for work on a temporary or permanent basis to be at places other than the campus. The employee received her contract of employment from the transferor on 20 September 2010; she returned it signed to the transferor on 6 October 2010. The employer provided the employee with the new contract of employment on 18 November 2011, at all times the employee refused to sign this contract.

Initially the employer did not pay the employee sick pay to cover her absence on sick leave for eleven days in December 2011 despite sick pay being included in both contracts. By the time of the Rights Commissioner hearing on 23 February 2012 this omission had been accepted by the employer and corrected such that the only remaining issue on sick pay was for the employee to refund the employer any illness benefit received from Social Welfare. In the end it was discovered that the employee had no entitlement to illness benefit at the time in question and, accordingly, there was nothing to refund to the employer.

The remaining issue between the parties concerning the contract was that the new contract provided for 20 days annual leave as against 21 days annual leave with the transferor. Again this issue was resolved prior to the 23 February 2012 Rights Commissioner hearing.

Determination of Employee Appeals:

When it was pointed out to the employee that the appeal under the Payment of Wages Act, 1991 related to the non-payment of sick pay which had been received prior to the 23 February 2012 hearing the appeal under that Act was withdrawn.

The Tribunal is satisfied that the employer provided the employee with a statement of her terms and conditions but the employee refused to accept this document despite the employer having corrected the error in it in regard to annual leave. Accordingly, the Tribunal is satisfied that the complaint is not well founded and the recommendation of the Rights Commissioner under the Terms of Employment (Information) Acts, 1994 to 2001 is upheld.

Equally the Tribunal is satisfied that the only issue outstanding in relation to the Transfer of Undertaking Regulations relates to Regulation 4 which relates to the transfer of rights and obligations from transferor to transferee. The only issue outstanding under the regulations related to the number of days of annual leave and this was again resolved prior to the 23 February 2012 hearing. Accordingly, the Tribunal is satisfied that the complaint is not well founded and the decision of the Rights Commissioner under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 is upheld.

Employer Appeal under Unfair Dismissals Acts

The complaint under the Unfair Dismissals Acts being of constructive dismissal it fell to the employee to make her case.

The employee’s position was that the conduct of the employer, and in particular OM, in attempting to get her to sign the contract of employment provided by the employer was so unreasonable as to amount to bullying and harassment justifying her decision to resign from the employment.

Her position was that having submitted the complaints which were the subject of the 23 February 2012 hearing on 10 January 2012 she was submitted to bullying and harassment form OM. On 11 January 2012 the employer had phoned her and told her that if she did not sign the new contract there would be no job for her. In particular OM approached her on 13 January 2012 when she was in a toilet cubicle at the change rooms at the campus to discuss her refusal to sign the new contract.

On 29 February 2012 the employee wrote to the respondent raising a grievance in relation to her being bullied and harassed by OM. In this letter she raised the incident of 13 January 2012 without giving it a date. The employee asserted that she would not sign the employer’s contract as she believed that the transferor’s contract was still in place. There was further a complaint that OM had bullied and harassed her about her work and in particular had blamed her for bins not being emptied on 23 February 2012, the day she was at the Rights Commissioner hearing.

The respondent’s position was that he endeavoured to speak to the employee about these matters but, just as it was almost impossible to get the employee to engage on the matters which had been the subject of the 23 February hearing, it was not possible to engage with the employee in any meaningful way in order to discuss her complaints.

On 6 April 2012 the employee wrote to OM giving four weeks’ notice of her intention to resign citing that she could no longer put up with the endless bullying and harassment and the attempts to worsen her terms and conditions of employment.

Determination:

The Tribunal accepts the evidence tendered on behalf of the employer that the employee was unapproachable. For any dispute to be resolved there needs to be dialogue and the Tribunal is satisfied that the employee was not prepared to engage in any meaningful way with the employer. That being the case when the employer found that his attempt at an informal approach to the employee in respect of the complaint of 29 February 2012 was not going to work he should have sought to invoke more formal means to deal with the matter, at the very least setting out the way he proposed to deal with her complaints.

The incident of 13 January 2012 involving the employee and OM was not raised by the employee at the 23 February hearing. When the employee was asked why this was by the Tribunal her reply was that she had not been asked about it. The 23 February hearing was all about vindicating the employee’s rights by seeking to retain the same terms and conditions as existed under the transferor and the 13 January incident involved an attempt by OM to engage with the employee on this very matter. It is hard to understand how the employee did not think that this incident had relevance to that hearing.

In order for a claim of constructive dismissal to succeed there needs to be either a fundamental breach of a term of the contract of employment going to the root of that contract or conduct on the part of an employer so unreasonable as to justify the claim of constructive dismissal. This requirement does not sit well with the employee in this case who felt able to give four weeks’ notice of her decision to resign. For all these reasons the Tribunal is not satisfied that the employee has met the onus of proof required in order for a claim of constructive dismissal to succeed. Accordingly, the claim under theUnfair Dismissals Acts, 1977 to 2007 fails and the recommendation of the Rights Commissioner under is upset.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)