EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Dovile Veronko -claimant UD624/2012
RP460/2012
MN475/2012
Against
James Kelly & Sons (Wexford) Limited -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Mr N. Dowling
heard this claim at Wexford on 27th February 2014
Representation:
Claimant: John Glynn & Company, Solicitors, Law Chambers,
The Village Square, Tallaght, Dublin 24
Respondent: Ms Juanita Brennan, IR/HR Executive, IBEC South East Region,
Confederation House, Waterford Business Park, Cork Road, Waterford
Summary of evidence:
The claims under the Redundancy Payments Acts and the Minimum Notice and Terms of Employment Acts were withdrawn during the hearing.
The respondent company is a bakery employing a staff of 37. The claimant worked nightshifts and was employed in the role of confectioner from February 2008. In October 2011 the claimant approached the Production Manager and requested a change to day shifts in December 2011 due to a change in childcare arrangements. A director of the company recalled that the Production Manager informed her of this request. They agreed that as long as the cake orders were not affected they could facilitate the claimant with a day shift of 9.30am to 6pm. However, this was later amended to 8.30am to 5pm to allow the claimant some further time to put childcare arrangements in place although the company really needed her to work until 6pm. The claimant refuted in evidence that she had agreed to these hours. It was her evidence that she had agreed with her supervisor to work from 8am to 4.30pm. The claimant did not agree that she had to work until 5 pm as she did not see this reflected in her contract. No one listened to her when she said that she was unable to work those hours.
The Production Manager stated that there were instances during January and February 2012 when cake orders were not completed. The deliveries manager reported delays due to this. On one occasion a supervisor had to deliver a cake a considerable distance in his car as the trucks had departed before the cake was made. The Confectionary Supervisor reported to the Production Manager that he had spoken to the claimant about starting and finishing work early.
Timesheets were opened to the Tribunal. On the 8th January 2012 the claimant arrived for work at 7.46am and departed at 15.42pm. The claimant said she had to go home and no one listened to her concerns in this regard. In reply to questions from the Tribunal as to why she left early when her evidence was that she had agreed a finish time of 4.30pm, the claimant said she had all cake orders completed.
The Confectionary Supervisor gave evidence that the claimant was a very good worker and that the only issue he had with the claimant’s performance was that she started and finished work early and did not work the allocated times. This issue arose when the claimant was to work from 8.30am to 5pm. If late cake orders were received the cakes would not be made due to the claimant leaving work early. As a result the order would carry over until the morning shift which caused problems. When the supervisor raised this issue with the claimant she said she would start and leave work when she liked.
The Bread Supervisor gave evidence regarding a cake order he received mid-afternoon. He referred the order to the claimant who stated that she did not have time to do it as she had to get home. When he later checked the cake had not been made even though it was due for delivery the following morning. He raised this issue with the Confectionary Manager when he came on duty. He confirmed that he was spoken to by the Production Manager in relation to facilitating the claimant’s partner with a later start time and also about the possibility of starting the entire break shift an hour later in order to assist the claimant’s child-care arrangements.
When matters did not improve with the claimant the Production Manager met with her and enquired if she had put childcare arrangements in place. However, the impression the claimant gave was that she did not intend to make any such arrangements. As a result the Production Manager issued the claimant with a verbal warning on 15th February 2012 which was confirmed in writing. It stated:
“…I give you formal notice that you have received a verbal warning with regard to leaving work before your agreed time.”
A director of the company gave evidence that she wrote an amendment to the claimant’s contract stating the amended hours of work as 8.30am-5pm. The amendment was provided to the claimant with the verbal warning. The claimant did not sign her acceptance to the amendment.
Having issued the claimant with this warning the Production Manager then made further attempts to facilitate the claimant’s situation. The claimant’s partner worked the bread night shift and the Production Manager spoke with the supervisor of that shift and told him to facilitate the claimant’s partner with a later start time.
Despite these attempts there was no improvement in the claimant’s time-keeping. He again met with the claimant on 20th February and she told him she could not work until 5pm. The Production Manager issued the claimant with a dismissal notice on 20th February which stated:
“….whereby you are unable to comply with the new hours advised to you in December commencing at 08.30 and finishing at 17.00, and you are unable to go back on the previous nightshift which you worked up to December 2011, it is with regret that we must give you two weeks notice.”
The Production Manager issued this letter in the hope that the claimant would realise the importance to the company of working until 5pm. However, again there was no improvement following the issuing of this letter.
In the week that followed that letter the Production Manager met with the Confectionery Supervisor and the Bread Supervisor. They examined the possibility of changing the start time of the bread shift to 6.30pm and also allowing the claimant to finish at 4.30pm, thus allowing for a two-hour gap between the claimant’s attendance at work and her partner’s. However, in order to facilitate this the Production Manager also had to ask the company’s most important client if they would agree to an earlier cut-off time for cake orders. The Production Manager asked the claimant to consider this proposal. He later heard she had requested a P45. When he approached the claimant about the proposal she said it did not matter as she was leaving the employment.
The claimant acknowledged in her evidence that during her notice period there were discussions regarding her remaining in the employment but she did not consider this to be possible due to the earlier “conflict.” In any event she did not receive anything further in writing following the letter of termination.
During cross-examination a director of the company accepted that the company’s disciplinary procedures were not followed. The letter of the 20th February was not retracted in writing as the company was interacting with the claimant in efforts to resolve matters on an almost daily basis in the two weeks after that letter issued. In reply to questions from the Tribunal, the director stated that there were several occasions when a cake order was received but the claimant had left. The cut off time for cakes was between 4-4.30pm but sometimes were received later. On occasions when the orders had not been fulfilled by the claimant the cake would be made by the director or the Production Manager who would start work earlier to allow for it. The claimant in her evidence stated that she had always fulfilled orders received.
Determination:
Having considered the evidence of the parties and the legal submissions the Tribunal finds that the claimant was dismissed by the respondent by letter of 20th February 2012. The reason for the dismissal was that the claimant was unable, for family reasons, to work the hours required by the respondent. This requirement was objectively justified on the needs of the business and the claimant’s contract of employment allowed for it. Accordingly, the dismissal was justified under other substantial ground.
The Tribunal accepts the submission of the legal representative for the claimant that the dismissal was effected other than in accordance with fair procedures and other than in accordance with the respondent’s own disciplinary procedure. However, the dismissal was revoked in or about a week after the 20th February 2012. Taking into account this fact and the very significant efforts made by the respondent to accommodate the claimant’s requested hours of work the Tribunal finds that any procedural defects were cured.
The Tribunal then went on to consider whether the reasons of the claimant for refusing to accept the revocation of the dismissal constituted grounds for a constructive dismissal. The Tribunal finds that the claimant should have at least tried the new hours rather than deciding in advance that it would not work.
The Tribunal does not accept that any conflict caused over the hours of work issue was insurmountable but rather the claimant wanted hours from 8 a.m. to 4 p.m. and nothing else and despite the best efforts of the respondent this just was not possible because of the nature of the respondent’s business. Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)