EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
EMPLOYEE - appellant UD774/12
against the recommendation of the Rights Commissioner in the case of:
EMPLOYER - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr. L. Tobin
Mr N. Dowling
heard this appeal at Dublin on 27th January 2014.
Representation:
Appellant: In person
Respondent: Ms Edel Kennedy, Mason Hayes & Curran, Solicitors, South
Bank House, Barrow Street, Dublin 4
This appeal came before the Tribunal by way of the appellant (employee) appealing against the recommendation of the Rights Commissioner ref. r-118713-ud-11/EH).
The determination of the Tribunal was as follows:-
Appellant’s Case:
The appellant worked as a caretaker in a school and commenced employment in February 2008 on a full time basis. He had a good working relationship with the then School Principal and also with the new Principal (DOH) who took over the role on 1st September 2009. The appellant’s role entailed the maintenance of the school grounds.
After some months his hours of work were reduced to 25 hours per week and were further reduced to 15 hours per week in September 2008. The appellant had never sought a reduction in his working hours and was unhappy with this arrangement. Around this time a second caretaker was employed and worked a 20 hour week. He looked after the maintenance of the school.
On 11 July 2011 the appellant spoke to the school principal (DOH) and requested extra hours. He was struggling to keep on top of his workload and often worked weekends and bank holidays. He had not been asked to work these extra days and DOH at no time had ever asked him to cease working these days. He took time off during the school holidays. He had asked for extra hours on more than one occasion.
He was informed that no funds were available to facilitate his request but DOH agreed to speak to POC, Chairperson of the Board. His request was subsequently refused.
On 28th July 2011 the appellant handed in his notice. He had been very happy in his role as caretaker. He worked extremely hard. He had enjoyed good health during his tenure. He had lost trust and confidence in the Board and felt he had no alternative but to tender his notice. He agreed to work until the end of August and extended this to the end of September 2011 to facilitate the recruitment of a new caretaker. His employment ended on 28th September 2011. The school made two presentations to him at this time.
On 1st November 2011 the appellant received a telephone call from the new caretaker (S). S had a difficulty with the lawnmower and the appellant went to the school and gave him assistance with the mower. He became aware that S was working a 20 hour week.
The appellant sought a meeting with DOH on 7th November 2011 and discussed his request for extra hours at that meeting. He expressed that he had been unfairly treated by DOH and the Board. He felt the explanation he was given was unsatisfactory. He felt he was constructively dismissed. He had wanted fairness and an increase in his working hours which were denied.
Respondent’s Case:
DOH is Principal of the school for the past four and half years. He had an excellent working relationship with the appellant and had utmost regard for him. The appellant had initially worked a forty hour week. He subsequently requested a reduction in his hours to 25 hours per week and in October 2008 he sought and was a granted a further reduction to fifteen hours per week. He worked Monday, Tuesday and Wednesday mornings from 8.30 am to 1.30 pm. The respondent engaged a second caretaker (H) and he was employed on a part time basis.
In around 28th July 2011 the claimant informed DOH that he was giving in his notice. DOH took this at face value. The appellant agreed to work on till the end of August 2011. The appellant felt that the role was becoming too difficult for him and he could no longer work with H.
The appellant’s position was advertised locally. Seventeen applications were received and five applicants were short listed for interview. S replaced the appellant in his role. The appellant agreed to extend his notice period until the end of September 2011.
During September the appellant proposed changing his working arrangement. He wished to work fewer hours during the winter months and increase his hours during the summer months. This was unsuitable in light of the needs of the school.
The school made a presentation to the appellant on his retirement.
In early November 2011 the appellant sought a meeting with DOH. At that meeting the appellant made a number of accusations. The appellant subsequently lodged a complaint for constructive dismissal with the Rights Commissioner and appealed the Rights Commissioner’s recommendation to the Employment Appeals Tribunal.
The appellant was not dismissed from his role.
Determination:
Having heard evidence from both parties in this case the Tribunal is satisfied that the appellant was not dismissed from his employment but that he tendered his resignation on 28th July 2011. Subsequently the appellant facilitated the respondent by extending his notice period to the end of September 2011.
The Tribunal is satisfied that the appellant was not constructively dismissed from his employment and upholds the recommendation of the Rights Commissioner.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)