UD2387/2011, MN2404/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIMS OF:                                                                                                        CASE NO.

                                           UD2387/2011

Employee        -           claimant                                                                             MN2404/2011

against

Employer         -           respondent

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 E. Harrington

Members:        Mr. P. Casey

                        Mr D. McEvoy

heard this claim at Cork on 26th June 2013

                         and 5th September 2013

Representation:

_______________

Claimant:         Mr. Kieran McCarthy, Kieran McCarthy & Co, Solicitors, Floor 3B, 6 Lapps Quay, Cork

Respondent:    Mr. Tony Kerr B.L. instructed by The Respondent

Background

1                    The Claimant commenced employment with the Respondent on or about 12^th January 2006 and resigned by letter issued on 8^th August 2011 and received by the Respondent on or about 8^th August 2011, which resignation was accepted by the respondent by letter dated 9^th August 2011.

2                    The Claimant was employed as an Auxiliary Postal Sorter with the Respondent.

3                    The Respondent had commenced an investigation into possible violation and tampering of postal packets and suspected theft of contents of postal packets at the Mails Centre where the Claimant was employed.

4                    The Claimant was requested by the Mails Centre HR Manager to attend a meeting before the start of her evening shift on 8^th August 2011, which she duly did. The meeting was attended by an investigator from the Respondent’s Investigation Branch. The meeting commenced at 6:35pm and concluded at 6:50pm. The Claimant was informed of her suspension from duty at 7:10pm. The Claimant declined to accept a written notice of suspension. The Claimant wrote a signed handwritten letter addressed to the HR Manager, in which she stated, “please accept my resignation from today 8/8/11”.

5                    By letter of 9^th August 2011, the respondent accepted the resignation of the Claimant

Hearing

1                    Evidence was given by the Claimant, the HR Manager, the Acting Manager of the Investigation Unit and a member of the Investigation Unit (“the Investigator”)

2                    There were numerous conflicts of evidence. In respect of the core issues as outlined by the Claimant, the Tribunal notes as follows:

A         Prior notice of meeting

i           The Claimant maintained that she was ambushed and had no prior notice of the purpose of the meeting and in fact had assumed that she was going to receive a permanent contract of employment

ii          The Respondent maintained that the matter was handled sensitively, in that a message had been left for the Claimant to call to the HR Manager. At the outset of the meeting, the HR Manager introduced the Investigator. The Investigator maintained that he followed the protocol which had been agreed with the relevant Trade Union in that he introduced himself, explained the nature of his enquiry and asked the Claimant whether she wished to have a friend present.

B         Meeting of 8^th August 2011

i           The Claimant said that at the meeting she was shocked, humiliated, terrified and upset. The Claimant was shown photograph stills of herself and was told there was no point in denying it. The Claimant was told the Gardaí would be very interested and would call to her.

ii          The Claimant denied that there was a special procedure for handling damaged mail and said she followed the same practice of her colleagues in sellotaping the letters.

iii         The Claimant said she was overcome, she didn’t deal with matters properly, she couldn’t vocalise what she wanted to say. She said from the moment the allegation was put to her, she wasn’t thinking straight. She wanted to get out the door. She agreed she said she never wanted to set foot in the building again.

iv         The HR Manager denied that any voices were raised at the meeting and said that the matter was managed properly and in accordance with the Respondent’s Dignity at Work policy. She said the Claimant was not happy but showed no evidence of stress. She said that the Investigator never shouted.

v          The Investigator acknowledged that he referred to post being opened/ violated and may have said the contents were being stolen. He denied he was ever hostile, aggressive or intimidating, or that he ever shouted.

vi         No contemporaneous record or audio recording of the meeting was made available to the Tribunal. The Tribunal was informed that a diary which contained the record of the meeting could not be located

C         Exit from Meeting of 8^th August 2011

i           The Claimant stated she was brought from the office through a different stairway, and was asked whether she wished to have a taxi arranged for her.

ii          The HR Manager said that the side stairs were used to protect the Claimant’s privacy and the taxi was offered as the Claimant was departing hours before her scheduled shift end and might not have transport arranged. She denied that the offer was made because the Claimant was clearly unwell.

D         9^th and 10^th August 2011

i           Claimant made no further contact with the Respondent. In response to a question from a Tribunal member, Claimant said when she left on 8^th August she felt her resignation would not be accepted. She said she did not recall being told of support being available from the Welfare Officer. She acknowledged that she did receive a phone call from the Welfare Officer on 10^th August, who left a message telling her to feel free to get in touch. She said she didn’t think the Respondent had her best interest at heart and if the Pope had called she wouldn’t have answered the door

ii          The HR Manager confirmed that having consulted with her line manager she issued the letter accepting the Claimant’s resignation.

E          Submissions

i           The essence of the Claimant’s case was as follows:

• She was ambushed
• She was accused of a criminal offence under the Postal and Telecommunications Services Act 1983 and in particular Section 84, yet safeguards were not put in place to properly record the content and manner of conduct of the interview of 8^th august 2011
• That the Investigator never satisfied himself as to the procedures actually followed by employees on a daily basis at the particular Mails Centre
• Correct procedures were not followed in sequence and the Claimant was in shock and therefore could not properly consider the offer of bringing in a friend
• The meeting was hostile and conducted aggressively
• The Respondent promptly accepted the Claimant’s resignation, without being concerned as to her well-being

ii          The essence of the Respondent’s case was as follows:

• The investigation was carried out in accordance with agreed procedures
• Notice of the meeting was given in accordance with agreed procedures
• The Claimant resigned, rather than exhausting an elaborate grievance procedure

Determination

1                    The onus of proof in a constructive dismissal case rests with the Claimant, who must prove the behaviour of the employer justified his action in resigning. The burden is onerous. Moreover, Counsel for the Respondent placed reliance on authorities including Conway .v. Ulster Bank Ltd (UD474/1981) in which the employee resigned his position without fully engaging with the Respondent company’s grievance procedures in order to resolve his difficulties.

2                    The Tribunal considered whether it was reasonable for the Claimant in these particular circumstances not to exhaust available procedures. The Tribunal notes the following:

i           There has never been any finding of wrong-doing on the part of the Claimant.

ii          The Respondent is entitled to carry out investigations to protect mail

1. The manner in which the Claimant was given notice of the meeting did not breach her rights

iv         It was not an agreed procedure with the Trade Union nor is it generally mandatory to make a recording of investigation meetings. The Tribunal considered it very unsatisfactory that proper records of the meeting were not made available to the Tribunal, which might well have assisted the Tribunal in resolving the conflicts of fact.

v          The Tribunal finds that the Respondent was not aware that the Claimant’s mother was unwell or that the Claimant had spent much time overnight in hospital with her mother

vi         The Tribunal finds that the Respondent was not aware of any particular vulnerability of the Claimant at the time of the meeting of 8^th August 2011

vii        The Tribunal notes that following the Claimant’s resignation, the Respondent did not invite the Claimant to reconsider her decision to resign from her employment, but that the Claimant did not engage with the Respondent’s Welfare Officer nor did she at any time seek to withdraw her resignation

The Tribunal finds, having regard to all the facts in this particular case, that the Claimant’s termination of her employment does not constitute constructive dismissal within the meaning of the Unfair Dismissal Acts 1977 to 2007.  Consequently the claim under the Minimum Notice and Terms of Employment Act, 1973 to 2005 must fail.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)