UD130/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                             CASE NO.

Marie Maher                                                                                                            UD130/2013

                                                                        - Claimant

Against

Kevin Tunney

                                                                        - Respondent

Under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. R. Maguire B.L.

Members:     Mr. F. Moloney

                     Mr. T. Brady

heard this claim at Dublin on 25^th February 2014

                                       and 18^th June 2014

Representation:

Claimant:         In Person

Respondent:    Ms. MP Guinness BL instructed by:

Kevin Tunney, Solicitors, Millenium House, Main Street, Tallaght, Dublin 24

The determination of the Tribunal was as follows:-

This is a claim under the Unfair Dismissals Acts, 1977 to 2007 for constructive dismissal. The claimant was employed as a Legal Secretary for a Solicitor’s practice.

Claimant’s Case:

The claimant gave evidence. She commenced employment with the respondent in 2001. She loved her job. Her mother worked there as a cleaner, later being replaced by her daughter (claimant’s sister) and her son was later employed as a junior. An incident occurred resulting in her son being dismissed from the respondent. The claimant had not been aware of the incident. Although she was told “ not to worry” by the owners daughter (NT) when she apologised for the incident and that it would not affect her, she felt she was treated differently. She spoke to the owner / principal of the business (KT) about the matter. KT told her he was disappointed and said he could press charges but had decided that he would not. She offered to repay the money and apologised.

She told the Tribunal that she felt they did not want her working there. KT’s attitude towards her changed and he became “very snappy” with her. A colleague of hers (DB) was asked to attend a certain course. When the claimant asked KT could she attend it he asked why she “would want to do it?”. The claimant attended the course and passed the exam. DB received a distinction and KT appraised her. KT never acknowledged the claimant passing the same exam.

On another occasion DB was called by KT to speak to him before she left on leave DB told the claimant that she thought she was being fired. DB returned and told the claimant that KT had given her €50 and told her to have a nice holiday.

The atmosphere in the office got worse. KT asked her to leave a file out for him. She left in on top of the filing cabinet. This was the usual place to leave files he required. She left the office for the evening and KT rang her. She rang him back and he shouted at her saying “I told you to leave the file out for, it’s not f*****g there. She asked would she return to the office but he hung up. She told the Tribunal that she was worried.

When she later spoke to KT in the office he never mentioned the call. However, later that day he again shouted at her that he had asked her to leave the file out. When she replied that she had he said that when he asked for something to be done he expected it would be. Everyone in the office heard him. She began to feel nervous in the presence of KT. She spoke to the Manager (E) about it but he was a friend of KT.

On another occasion she was looking through a file for a court date but could not locate it. She felt too afraid to ask KT but did. KT told her to just look for it. She eventually found the date and informed him. She felt foolish that she had not been able to locate it.

Some of her duties, for example organising prison visits, were given to other colleagues to organise. On other occasions KT would stand behind her while she worked. When she made a mistake he grinned telling her of her mistake and walked away.

Her sister took over her mother’s position as cleaner and they would have lunch together on a Tuesday. As they sat at a table KT came in and just sat looking at them. The claimant turned to her sister and said they should go out for lunch. She spoke to NT who said that KT was the boss and could sit where he liked.

Some the respondent’s business involved the Legal Aid Board. More and more other solicitors in the area wanted the business. KT told her that they would have “to watch themselves”.  The claimant told the Tribunal that the business was quite busy with criminal work and she was very busy with her work. She explained that she was more or less KT’s P.A. and also worked for another solicitor in the practice.

She began to feel unwell. She looked online for some information regarding problems in the workplace and spoke to someone in a government department. She was asked would she like some leaflets sent to her but she declined as she did not want anyone in the office to know she had requested it.

She attended her doctor and was prescribed sleeping tablets and was advised to take two weeks off work. She had not wanted to take the time off but did. On the following Saturday morning E called to her home. He asked why she was out for two weeks and told him what had been happening with KT. He asked would he speak to KT for her but she said no.

She returned to work but KT did not even ask how she was. KT was very irritable with her. She asked NT to speak to him.

On another occasion KT had attended court regarding a client. He returned to the office in foul humour shouting about a court case that she said was to be heard that morning but was not scheduled by the court service. He told her that he had “felt like a f*****g eejit”. She asked for the file to check the notes and was shaking while she looked. She found that KT had made the note of the date and when he realised this he was even angrier. He was “in her face” saying there are going to be vacancies and if you want you can go. She asked was he trying to force her to go but KT walked out.

She told the Tribunal that she was in a really bad way and should have left but she needed the salary as she was the sole earner in the home. She again tried to speak to the Manager about it but was told her to speak to KT herself.

She again attended her Doctor. Things did not improve. She did look for alternative employment and attended interviews but was not successful.

On the 23^rd November 2011 she texted NT and said she was attending her doctor. Her blood pressure was extremely high. The doctor wanted to prescribe her sedatives and was prescribed sleeping tablets, the dosage of her blood pressure tablets were doubled. She received a sick certificate and texted NT the news. The respondent continued to pay her for two weeks then stopped. She contacted one of the other solicitors (PT) querying her wages and was advised to apply for social welfare benefit. She was sent a cheque for € 350 for holiday pay but could not cash it as it was Christmas time and the banks were shut. PT said he would speak to KT but never got back to her. She told the Tribunal that she felt they did not want her to return to work. She continued to forward medical certificates. She attended a solicitor for legal advice.

An investigation by a third party was agreed and carried out. Various employees and the claimant and KT were interviewed. A detailed report was issued and concluded that the investigator found “no bullying behaviour took place and that (the claimant)’s complaint in this regard was not a bona fide complaint.”

Another hearing was held before the Rights Commissioner in respect of her lack of a contract of employment and an issue regarding holiday wages. Other matters were raised at the hearing including the contents of the claimant’s facebook page. It had been viewed by NT in the respondent’s office. The claimant stated that this breach of trust was part of the reason she could not return to work for the respondent.

The claimant gave evidence of loss. She had been unfit to return to work for some time but was certified fit to return to work in May / June 2013.

On cross-examination it was put to her that NT had viewed her facebook page and that she had informed her sister that she was “pulling a sickie” and going to Spain. The claimant said that she had not said she was going sick but had gone to Spain for four days to see her sister while she was absent on sick leave. Her husband had block booked tickets earlier that year. She had made a formal complaint to the Data Protection Commission regarding the breach.

When attending the investigation into the allegations of bullying by KT she said that her sister, who had worked in the office, had not been allowed to attend the process with her.

She said that she could not understand why the respondent had not brought in a mediator when she had submitted a bullying complaint. She felt having an investigator was “going too far”. She did not agree with the conclusions found by the investigator.

The close friend of the claimant gave a character reference on her behalf stating the claimant was a very honest and full of integrity.

The claimant’s brother and her husband also gave evidence of her behalf. Both stated they had been very concerned with her health and wellbeing at the time of her problems at work. Both advised her to attend her doctor. Her brother attended the Rights Commissioner hearing with her in October 2011. He felt the fact the respondent had read from his sister’s private facebook page had been a total invasion of her privacy.

The claimant’s husband told the Tribunal that he had made the decision to take his wife, the claimant, away to Spain while she was on certified sick leave. He explained how financially difficult it had been for the claimant over the Christmas period of 2011.

Respondent’s Case:

The owner / principal (KT) of the business and his daughter (NT) gave evidence.

KT said there had been no previous issues with the claimant. She had worked as a Legal Secretary and her desk was located in his office. In hindsight, he said that this was probably not a good idea.

On cross examination he explained that the issue concerning the family law work being given to a colleague of the claimant to work on was because this person was a solicitor. He had discussed the issue with the claimant that she had “too much work on her plate”.

When certain comments he made to the investigator regarding the claimant’s typing skills and diary entries were put to him he responded that he had thought they were no big issue. He told the Tribunal that he was not a man to “lose his head”.

When asked why he had not contacted the claimant when she was absent on sick leave he replied that the investigation into bullying and harassment was taking place and it did not think it was appropriate.

He disputed that he had isolated the claimant in the office and had been unaware at the time that she was suffering from work related stress. No-one had informed him that the claimant had issues at work.

NT (KT’s daughter) gave evidence. She explained that she had viewed the claimant’s facebbok page. She had logged onto the computer and tried to log onto her own facebook page but the claimant’s was already open. She had seen a message from the claimant’s sister in Spain. She opened a message the claimant had made to her sister saying she was “pulling a sickie”. The claimant was never disciplined regarding this matter. The issue of the message on the claimant’s facebook page was raised at a hearing at the Rights Commissioner.

NT said there had been no issues with the claimant and if the claimant had any problems she, the claimant, could speak to her, NT, as she was the Office Manager.

On cross-examination she agreed that she had opened the claimant’s personal message on her facebook page.

Determination:

The Tribunal have carefully considered the sworn evidence adduced over the two days of this hearing.

The Tribunal finds they were sufficient and justifiable grounds for the claimant to conclude that her position with the respondent had been so untenable that she had no alternative but to find herself constructively dismissed.

However, the Tribunal finds that the claimant did not fully exhaust the avenues to mitigate her loss completely.

Accordingly, the Tribunal awards the sum of €12,500 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)