UD347/2013, MN189/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                           CASE NO.

Dian Reilly (claimant)                                                                                               UD347/2013                                                                                                                                      MN189/2013                                                      

Against

O'Reilly Ledwith Consultants Limited T/A O'Reilly

Ledwith Consultants Limited (respondent)

under

DISMISSALS ACTS, 1977 TO 2007 UNFAIR

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms J. McGovern B.L.

Members:     Mr M. Carr

                    Mr T. Brady

heard this claim at Trim on 23rd April 2014

Representation:

_______________

Claimant(s) :               Ms Denise Cassidy, Solicitor, Main Street, Virginia, Co.Cavan

Respondent(s) :           Peninsula Business Services (Irl) Limited, Unit 3, Ground

                                    Floor, Block S, East Point Business Park, Dublin 3

The determination of the Tribunal was as follows:

Summary of Respondent’s case

The claimant commenced employment with the respondent company on 14^th August, 2007 until 8^th January, 2013. She was promoted from Account Manager to Team Leader in January, 2011.

The Managing Director (MD) told the Tribunal that the claimant returned from her maternity leave in May, 2012.   The claimant went on sick leave in August, 2012. A week after the claimant went on sick leave, the Sales Manager told the MD that the claimant had a number of bullying and harassment grievances. The respondent wrote to the claimant stating that they would hear her grievance on 20^th August, 2012. The MD did not attend this meeting as he was one of the named persons involved in the accusations by the claimant. The Sales Manager, who attended this meeting, was not present at the hearing.

The MD attended a welfare meeting on 23^rd October, 2012 which was aimed at getting the claimant back to work. Following on from discussions at this meeting, the respondent arranged an appointment with an Occupational Therapist for Monday 19^th November, 2012. The MD indicated that he assumed the letter in relation to the appointment was posted to the claimant. The claimant did not attend this appointment.

The MD wrote a letter to the claimant on 8th January, 2013 terminating her employment on the grounds of ill health. This letter gave the opportunity of an appeal within 5 days. No appeal was initiated by the claimant.

In reply to the Tribunal, the MD stated that he informed the claimant at the meeting of 23^rd October, 2012 that her complaints were unfounded after investigation. He said that the claimant had refused to attend any meetings regarding an investigation. The appeal would have been heard by the MD, who also made the decision to dismiss the claimant.

Under cross-examination, the MD denied that the claimant returned to a changed working environment. The only change was that the claimant now reported to AS, Sales Manager instead of the MD and RK. Although the Sales Manager was the main point of contact and was not present at the hearing, the MD indicated that he had been instructing the Sales Manager in the background.

The MD denied that the claimant’s work had increased after her maternity leave and felt her grievance had been addressed. The MD submitted that he was not aware that the claimant had requested that another appointment be made with the Occupational Therapist and confirmed to the Tribunal that the claimant was not afforded a right to a dismissal meeting. He confirmed that no minimum notice was paid to the claimant as a result of her dismissal by the respondent.  

Summary of claimant’s case

The claimant told the Tribunal that on her return from maternity leave in May, 2012, the focus of the business was on sales. She still had to deal with customers and train two new staff members. The claimant indicated that she would also receive requests from other Managers to carry out cold calling for sales business. Before her maternity leave her role had been customer service related. On 14^th June, 2012 the claimant told the Sales Manager that she could not keep up with the workload and was also being belittled by RK and RMcD. RMcD told her to work harder as a Team Leader and rang a customer to check on the claimant’s performance. There was no performance related review within the company. The Sales Manager told her to only deal with him but nothing changed going forward.

An issue arose in May 2012 when the claimant noticed customers had been incorrectly set up on base rates and were not getting lower rate entitlements on phone accounts. The Sales Manager told her to ‘leave it’ and that new customers would be looked after.

A meeting took place on 20^th August, 2012 with AS and TG, Sales. The claimant brought a colleague with her. She stated she could not get an answer about how the grievance was being dealt with. She was informed that the staff members in question had been spoken to.

At the meeting of 23^rd October, 2012, the claimant agreed to attend an Occupational Therapist. She only received the appointment notification on the day of the appointment and therefore missed the appointment. She requested another date for an appointment but this was not given by the company. She then received a letter of dismissal dated 8^th January, 2013.

The reason the claimant did not appeal the matter was because she felt her grievance was never attended to by the company and she felt the appeal would not address the issues. The claimant had been told she would be given a copy of the grievance report but did not receive it.    

The claimant indicated that she did not receive minimum notice from the respondent and is on disability benefit.

Under cross-examination, the claimant stated that the reason she did not go directly to the MD was because she had been told to report directly to AS, Sales Manager. She took the undated letter issued in September, 2013 to mean that the company would have to get someone in as a substitute for her.  

The claimant stated that she has been minding children on an informal basis for payment since September, 2012 until June 2013. She was not paid by her employer while on sick leave and did not inform her employer that this work was being carried out by her.

Determination

Having heard the evidence, the Tribunal finds that the claimant was unfairly dismissed on the basis that the respondent failed to comply with reasonable procedures leading up to the dismissal.

At no stage was the claimant informed that her job was at risk should she fail to provide a return to work date or that any disciplinary process would be entered into.

The claimant gave evidence that she is on disability benefit since August, 2012 and as such is not available for work, on cross-examination however, she admitted she is engaged in minding children for payment. Furthermore, the Tribunal believes that the claimant should have engaged at some level in the appeals process offered by the respondent.

In the circumstances, the Tribunal will not exercise its discretion under Section 7 of the Unfair Dismissals Act, 1977 as amended by Section 6 (a) of the 1993 Act and therefore makes no award in this instance.

The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 is allowed and the claimant is awarded the sum of €2,100 being 4 weeks gross pay.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)