EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Amanda Reilly UD1775/2012
Against
Noonan Services Group Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Mac Carthy S C
Members: Mr T. O'Sullivan
Ms M. Maher
heard this claim at Dublin on 12th February 2014 and 30th June 2014 and 1st July 2014
Representation:
_______________
Claimant: Ms Emma Meagher, James McSweeney, Solicitors, 515 Main Street,
Tallaght Village, Dublin 24
Respondent: Mr John Barry, Management Support Services (Ireland) Ltd,
The Courtyard, Hill Street, Dublin 1
This matter came before the Tribunal by way of a claim of constructive dismissal. As this being a case of constructive dismissal it fell to the claimant to give evidence first.
Claimant’s case:
The claimant AR began work with the respondent, a cleaning company in February 2005. In 2006 she was offered the job as trainer and also covered maternity leave/sick leave/holidays as supervisor. All was well in the work place until sometime during 2010/2011. Around this time she began to feel bullied and humiliated in her position and considered herself demoted.
AR outlined incidents that occurred which lead to her to feel as she did. The first one occurred with a work colleague TT (who was also the union shop steward), words were exchanged in a porta cabin that was used by the cleaners and site managers. AR said that she was terrified by the other party involved and was asked to write a report about it but nothing was done. It led to the two of them being put together in an office and the situation just escalated further. The site manger did not intervene and did not reprimand the other party.
Further events included being left out of a list when hierarchy was being discussed, a drawing on a white-board that she considered to be her, being de-friended on facebook and when she asked to take holidays at Christmas being told that “others might want it”, which was never how it was handled before. She also told the Tribunal that she didn’t get staff evaluation forms like everyone else and that when new uniforms were obtained she was told not to wear hers.
AR went sick for a week in July and on her return on 25th she was ignored until EG called her aside. She was asked if she had a fit to return to work certificate. When she said no she was told that a meeting with HR would be necessary before she could return to work. It was arranged for the following day and she was advised that she could bring a representative with her.
PK from HR was in attendance at the meeting, along with EG. The claimant was accompanied by a Union Representative BT. PK asked why she was out on stress leave. AR went through everything, she broke down as she told of how she felt she was being treated. It was agreed by all at the conclusion of the meeting that a fresh start was required.
The next day, before she had her jacket off, she was told by EG that as trainer she could be sued if someone slipped on a wet floor. She rang PK and asked for a copy of her contract, PK said it was on the site where she worked. She then heard EG talking about somebody winning a case against the respondent but would end up with nothing and the penny dropped - it was aimed at her. She never asked her for her contract but took a case to the Rights Commissioner who made recommendations, much of which she disagreed with. She again went on sick leave in August 2011 and was not declared fit to return until September 2012. She could not face a return to work, particularly after going to the Rights Commissioner and so requested her P45.
Under cross examination AR was agreed that a full investigation was undertaken in March 2012 and that she received the outcome report. She was given seven days to reply. Her complaint was not upheld but she did not reply. Mediation was arranged and agreed to but she did not participate.
Respondent’s case:
EG gave evidence of being the contract manager with 160staff for over 10 years. The claimant was there throughout her tenure and she was not aware of issues except that words had been exchanged with TT. The claimant was successful in getting the job as trainer. It was 5 day, 30 hour a week job and the claimant was facilitated by making it a 20 hour a week job. She asked not to work on Fridays or weekends and was facilitated with that as well.
ED did not remember AR ever coming to her with a problem. In July she was asked to re-train some people who had been there for 30 years. This was when the incident with TT occurred, something was said and TT took exception to it.
When the claimant made her aware of the altercation, EG told her to outline it in writing. She read the report and a lot of it was personal. EG told them to sit down and talk, she left them in the office and on her return was told everything was sorted. With regard to the holiday issue EG told the Tribunal that the same people were off every Christmas. Two people had never had time off over Christmas and were given an opportunity that year.
With regard to the drawing on the whiteboard, it was a board used for messages and pictures were drawn on it for all occasions. When the claimant asked if it was her she was told not to be paranoid, and it wasn’t mentioned again. The other issues such as evaluation forms, uniforms, facebook, and the reason for mention of insurance claims were explained in detail to the Tribunal.
EG said that she contacted HR in July because of the nature of the claimants sick certificate. It was practice to have a back to work interview and a fit to return to work certificate if stress is cited as a reason for absence. The claimant was told to come in the next day and bring someone with her if she wanted. At the meeting the next day EG was shocked when she heard about the issues that AR had. She felt hurt and upset and felt portrayed as someone who didn’t care. It all came out of the blue as AR had any amount of opportunity to talk to her and hadn’t done so.
PK told the Tribunal that a return to work meeting is always set up to identify the stressor. The meeting ran for over two hours and was emotional, everybody was upset. At the conclusion it was all about moving forward and everything was positive. No action was necessary and the claimant was to go to EG or PK as soon as anything happened. Communication was all important and there was nothing outstanding at the end of the meeting.
Determination:
The question for the Tribunal was whether the claimant left her employment in circumstances in which, because of the conduct of her employer, it was reasonable for the claimant to terminate her Contract of Employment.
The Tribunal has found nothing in the employer’s conduct to be of sufficient seriousness as would entitle the claimant to leave of her own volition and then claim that she had been unfairly dismissed.
The claimant has not succeeded in meeting the onus which is on her to establish that she was constructively dismissed. Accordingly the claim under the Unfair Dismissals Acts 1977 to 2007, must fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)