EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Raymond Lawlor as the Personal Representative in the estate UD840/2011
of Yvonne Lawlor (deceased) - claimant
Against
Andy Quinn, Diarmuid O’Connell, Carl Dillon, Ned Murphy, Trevor Leacy, John Callaghan, Mark Barrett, Eoin Lehane and Michael Mullins practising under the style and title of Moore Stephens Nathans - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Hennessy
Ms. N. Greene
heard this claim at Portlaoise on 18th March 2014 and 4th June 2014
Representation:
Claimant(s) : Mr Simon McDonald B.L. instructed by Elaine Dunne, Solicitor,
27 Jessop Street, Portlaoise, Co Laois
Respondent(s) : Mr Colman O’Donnchadha B.L. instructed by Martin A. Harvey Solicitors,
9/10 Georges Quay, Cork
Determination
The Division ruled that it could be prejudicial to the respondent to allow in evidence the personal notes of the claimant and these were excluded from evidence at the hearing.
The Tribunal heard evidence from the personal representative, (the deceased claimant’s father), that his daughter commenced employment as a trainee accountant with the respondent accountancy firm on 1 October 2007 in their Dublin office. She was employed under a contract of employment and a training contract and was required to sit exams as part of her training contract. She completed her probationary period and successfully completed her first year exams in 2008 and commenced into the second year of her employment.
From early 2008 to January 2009 she suffered from migraines, sinus infections and glandular fever resulting in her being intermittently absent from work. The vast majority of these absences were supported by medical certificates or pre-authorised annual leave. She was also hospitalised for a period of time due to her illnesses.
The Tribunal heard evidence that in April 2009 she was asked to attend a meeting with the respondent’s human resources director where she was informed that the company proposed placing her on a pre-training contract. She was very concerned and confused at this development and sought clarification as to what this entailed. In that regard she subsequently sent a number of e-mails to the HR director in April 2009 seeking clarification but received no reply. She became very anxious about the complete lack of clarity surrounding her professional training and her career. She was then requested to attend a meeting at the respondent’s Cork office on 30 April 2009. The respondent’s HR director and legal advisor attended this meeting.
The Tribunal heard evidence that she was issued with a verbal warning for absenteeism at this meeting. The proposal of placing her on a pre-training programme was withdrawn but it was suggested to her that other staff members had overheard conversations that she intended taking legal action against the firm relating to the issue of her being placed on a pre-training programme. The Tribunal was told that she became very anxious, fearful and paranoid that employees in the workplace were talking about her. She was subsequently given menial tasks at work, working at reception rather than carrying out her duties as a trainee accountant. She became withdrawn, started to have panic attacks and became depressed. She started to take more time off work due to the exacerbation of her migraines caused by her depression. She was prescribed medication and she was concerned that her depression would have a long term effect on her career and she sought advice from the witness (her father).
The witness told the Tribunal that he felt she needed rest and time away from the workplace to allow her medication to take effect and advised her accordingly. In November 2009 she approached (D) a partner in the firm to discuss the issue of seeking unpaid leave in a controlled fashion to deal with her illness. She then received a letter dated 12 November 2009 from the HR director issuing her with a final written warning for her continued absences and her failure to reach a reasonable standard of competence expected from a trainee accountant. She was informed that if she could not undertake to remedy this situation within the next calendar month the firm would be left with no alternative but to terminate her training contract with the firm. She was given the opportunity to make representations in regard to the above within seven days if she wished to do so. A detailed nine page copy of her responses dated 18 November 2009 and 20 November 2009 were opened to the Tribunal.
The claimant then wrote to the respondent on 6 December 2009 stating inter alia that she felt abandoned in a corporate sense, left to deteriorate with zero help, communication or direction. The respondent’s legal representative replied to this letter on 7 December 2009 stating inter alia that the firm was sensitive to her situation regarding her health and it was envisaged that a meeting would occur in the near future to discuss the warnings issued to her and the subsequent representations made. The letter also stated that when she had recovered to the degree that she felt able to attend a meeting it was hoped that an amicable solution could be reached to the benefit of herself and the firm and the warning issued to her was not notice of termination of her employment in any way, shape or form. A further series of correspondence exchanged between the parties, copies of which were opened to the Tribunal, without any satisfactory outcome to the matter.
The witness gave further evidence that his daughter had no certainty or control over matters and felt her career was in a complete mess. She remained absent from work and was hospitalised in January 2010. She was heavily medicated following her discharge from hospital. She was subsequently under further medical care and was attempting to get a focus on her life. The witness told the Tribunal that it became clear to his daughter that she could never return to the respondent’s workplace. She planned to continue her studies through an alternative exam based route. She resigned from her employment by way of letter dated 27 October 2010, a copy of which was opened to the Tribunal.
The witness gave further evidence that his daughter was never afforded the opportunity of having a representative present at any of her meetings with the respondent firm. She was never requested to attend the firm’s doctor. He could not understand the behaviour of the firm as they never followed any of their own procedures as specified in the company handbook. He told the Tribunal that these procedures were textbook procedures but were never followed by the respondent firm. He gave evidence that the tenure of the respondent’s response amounted to get better or get sacked. He did not accept that the aforementioned letter of 7 December 2009 from the respondent’ legal representative to be a genuine offer as it had to be viewed in the light of previous occurrences.
In deciding this matter the Tribunal has considered whether Miss Lawlor’s perception as to the manner in which she was treated by her Employer would be a perception held by a reasonable employee in such circumstances.
Further, was the employer’s conduct so unreasonable as to justify the claim of constructive dismissal? What, if anything, happened in the employment relationship in this instance that led to the claimant’s resignation? In considering these questions, the Tribunal has had due regard to the evidence and documentation before it and, in particular, to the claimant’s letter dated the 18 of November 2009 which clearly sets out her perception.
The Tribunal is of the view that, by the time the final written warning was issued in November 2009, the trust between the employee and employer was already fragile primarily as a result of the employer’s efforts to place the claimant on a pre-training contract in April 2009.
The Tribunal has firstly looked at the interaction between the parties in April and May 2009.
The Tribunal is satisfied that the claimant had no input into her employer’s decision to seek to remove her from her training contract and place her on a pre-training contract in April 2009. This was initiated by the employer and the Tribunal, on balance, feels that the employer was motivated by its own interests and did not have due regard for the claimant’s position. RM on behalf of the employer, accepted in evidence that this was not a good deal for the claimant. The Tribunal considers it disingenuous of the employer to suggest that it introduced the proposal so as to benefit the employee.
The claimant strenuously objected and it is clear form her letter of the 18 November 2009 that this entire episode had a significant effect on her.
Clearly this incident impacted negatively on the bond of trust that should exist between employer and employee. The Tribunal is of the opinion that any reasonable employee would have felt that there were issues of trust arising out of this episode.
There followed a request from RM on the 29 of April 2009 for the claimant to travel to Cork to sort out matters. This meeting was badly handled and would have compounded the trust issue for any reasonable employee. There was no agenda for the meeting and at no time was the claimant advised that it was a disciplinary meeting. Even the minimum procedural steps one would expect from such a meeting were not adhered to. The Tribunal is of the view that the experience for the claimant would have been additionally challenging by the fact that she was required to travel to Cork and was left to face RM and the employer’s in-house solicitor without the opportunity to prepare herself for the issues raised at the meeting or to be accompanied to that meeting.
RM agreed at the Tribunal hearing that this was a disciplinary meeting and accepted that the claimant was not forewarned. A verbal warning for absenteeism was given to the claimant.
The Tribunal is of the view that it was wholly inappropriate for RM to raise an issue at the meeting pertaining to alleged reports by staff members that the claimant had been contemplating legal action. The Tribunal is puzzled as to the motivation behind raising this issue. What is abundantly clear, however, is that it was a matter that unsettled the claimant. The Tribunal is of the opinion that any reasonable employee would have had a similar response.
From that date, the claimant believed that there was a concerted effort to remove her.
On an objective appraisal of what occurred between 1 April 2009 and 30 April 2009 the Tribunal is of the opinion that this was a reasonable perception for her to have.
It is the Tribunal’s opinion that the events of the 13 November 2009 and the immediate aftermath shattered the already fragile trust that existed between the parties. The Tribunal firmly places responsibility for this disintegration of trust at the feet of the employer.
At her request DOC, in his capacity as a partner, met with the claimant. For the first time the claimant opened up to DOC about her depressive illness. Any reasonable employer would have appreciated how difficult this must have been for the claimant. This was clearly a “cry for help”. Yet DOC’s response was to conclude the meeting by advising her that she would be receiving a final written warning for absenteeism in the following days. The claimant came away from that meeting believing that she had the option of leaving voluntarily by Christmas or of being dismissed by way of a disciplinary procedure. The claimant documented her full understanding of the meeting in an e-mail to DOC on the same date following the meeting. DOC did not respond as would have been appropriate or expected to the content of this e-mail other than to briefly indicate that he did not consider it to be a completely accurate account of the meeting. He indicated that he would engage further with her in the following days but did not do so. The claimant’s perception was that he simply ignored her after the 13September 2009.
The Tribunal considers the evidence of RM to be wholly unreliable insofar as it relates to the issuing of the final written warning to the claimant and is not convinced by evidence given that this was not sent after she had disclosed some details of her depressive illness to DOC. No effort was made to withdraw the letter. This was a wholly inappropriate response to the claimant’s disclosures and would, in the Tribunal’s opinion, have irreparably damaged the bond of trust.
It would have been beneficial for the Tribunal to have had the benefit of DOC’s evidence. He might have provided helpful information around the issue of the final written warning and the immediate aftermath. Though present at the Tribunal, DOC did not offer any evidence.
On procedural issues, there was no evidence of a truly progressive approach in the employer’s dealings with the claimant. RM accepted that a first written warning was never given, that proper disciplinary meetings should have been held and that the claimant “probably” had no idea that a final written warning was going to be issued. The Tribunal is entitled to consider if a final written warning is issued in circumstances that are manifestly inappropriate. In these instances a reasonable employer would not have issued a written warning or would have withdrawn or suspended it in light of the claimant’s disclosure. The employer’s attention should, instead, have immediately turned to assisting the claimant who, it seems likely, had been rendered unfit to perform her duties due to incapacity. The employer did not appear mindful of its obligation, notwithstanding recognition of this obligation in its own handbook, to support an employee with a possible disability in the form of clinical depression.
A reasonable employer would immediately after the meeting on the 13 November have suspended any disciplinary procedure and fully and fairly engaged with the claimant. The employer had an obligation to acquaint itself with all relevant information and to take all reasonable steps to ascertain the true medical position. No proactive steps were taken by the employer to gain an understanding of the claimant’s illness or the impact on her. Had the employer done so it could have adjusted the claimant’s duties as appropriate, could have alleviated those work stresses most detrimental to a vulnerable employee at the time, could have facilitated some work from home and given her the structured support to assist her in getting her condition under control.
RM suggested to the Tribunal that immediately after the 13 November the disciplinary process was put on hold and the employer essentially “rowed back”. The Tribunal finds this evidence to be unreliable as it is not supported by the documentation before the Tribunal. The Tribunal is satisfied that RM knew of the claimant’s disclosure as to her depressive illness before the 20 November when he was still looking for submissions from the claimant in response to the final written warning.
How would any reasonable employee have felt having exposed her vulnerability to her employer on the 13 November 2009 only to find herself still under the threat contained in the final written warning on the 20 November 2009 and being asked if she wished to make further submissions. Notwithstanding her very personal disclosure to DOC on 13 November 2009 she was still the subject of a final written warning which unreasonably indicated that unless she could undertake to remedy her absenteeism within a stated period her employer would have “no alternative but to terminate your training contract”. The Tribunal considers this to have been completely unacceptable, a fundamental breach of the trust between employer and employee and sufficient to entitle the claimant to resign from her position and to consider herself to be constructively dismissed.
While RM in evidence appeared to accept that the claimant was effectively raising a grievance in her letter of the 18 November 2009 the employer sought to rely on the fact that the claimant had not formally invoked the procedure. The Tribunal considers the distinction by the employer to be disingenuous in the prevailing circumstances at the time.
The Tribunal has considered two additional issues as follows:-
Was the letter of the 7 December 2009 to the claimant and subsequent correspondence insofar as it “reflected a change in attitude”, in the words of RM, sufficient to rebuild the trust that had clearly been shattered and cure the repudiatory breach on the part of the employer. There are divergent views as to whether trust can ever be re-established and the consequent repudiatory breach cured where it has been broken. It is doubtful that it can be. This would introduce a situation where an employer could unilaterally make amends and re-instate a contract that has already been repudiated.
This Tribunal is of the view that, even if a repudiatory breach can be cured, the extent of the breakdown in the trust relationship would be the decisive factor.
In the content of this particular case, the Tribunal is of the view that after the 13 November 2009 trust was irreparably damaged.
Was the delay on the part of the claimant in tendering her resignation of any consequence? The letter of resignation is dated 27 October 2010. This letter was sent after the claimant had undergone three to four weeks of medical treatment.
The Tribunal sees nothing in the claimant’s actions (or inaction) after 13 November 2009, considering all of the circumstances that would lead to the conclusion that she was precluded from delaying the actual tendering of her resignation to 27 October 2010.
In conclusion the Tribunal finds that the employer broke the fundamental bond of trust and confidence that is the foundation of the employer/employee relationship and that, accordingly, the claimant was constructively dismissed.
Constructive dismissal having been established, the Tribunal considers it just and equitable to award four weeks remunerating totalling €1,864.00 pursuant to Section 7 of the Unfair Dismissals Act 1977 as amended by Section 6 Unfair Dismissals (Amendment) Act, 1993.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)