EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Denise Patterson UD187/2013
Claimant
against:
Eamon Hayes
Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O’Mahony BL
Members: Mr. J. Browne
Mr. J. Flavin
heard this claim at Nenagh on 22nd September 2014 and 18th December 2014
Representation:
Claimant: Patrick J. O’Meara & Company, Solicitors, Liberty Square, Thurles, Co. Tipperary
Respondent: J.J. Fitzgerald & Co., Solicitors, Friar Street, Thurles, Co. Tipperary
This was a case of constructive dismissal.
Summary of Evidence
The claimant and AE (another employee) were employed as carers looking after the respondent’s elderly parents in their home. SR (the respondent’s sister) also dealt with the carers. Originally, the employment had been through an agency but at the respondent’s request the carers began working directly for him in early May 2011. The claimant worked Mondays, Tuesdays and Thursdays from 9.30am to 8.30pm and AE worked the other four days, both having a two-hour break in the afternoons. At the respondent’s request the carers remained on the premises during their afternoon break. Relevant daily events were recorded in a care diary. Shortly into the employment AE wanted to reduce to working three days a week and the claimant took on the fourth day.
It was the claimant’s position that she was experiencing a number of problems in the employment. On a number of occasions the claimant’s wages were not paid on time; she had to telephone the respondent about this and on the final occasion she refused to come to work until her wages were paid. The claimant was very fond of the respondent’s parents and would do anything for them. There was no kitty and when she had to buy something or pay extra for prescriptions or other items for the respondent’s parents she was not reimbursed. Although there was central heating in the home the respondent’s parents loved to sit by the fire and when the coal was used she bought a bag of coal. SR’s position was that they were unaware of these extra outgoings and they had not been entered in the care diary.
On 19 April 2012 the respondent’s dog bit the claimant and in backing away she hurt her back against the wall. Following this incident, the claimant was absent from work for around two weeks. On her return to work her hours were reduced to three days per week without prior notice. The claimant initiated a personal injuries action against the respondent and found that subsequent to this the respondent and SR treated her differently. The respondent frequently phoned her at home in the evenings querying little things; she felt that he was just trying to find fault with her work.
From March 2012 the respondent’s father was becoming increasingly dependent. The public health nurse offered a home help for 1.5 hours per day to help with the respondent’s parents but the respondent and SR were not interested in this. In summer 2012 the claimant discussed her problems in the employment with SR. At a meeting in summer 2012 (at which the respondent, SR and the carers were present) getting more help was discussed. On 2 August 2012 the respondent advertised in a local paper for a third care worker. Following her discussions with the claimant and the claimant’s comments in the care diary on 9 & 14 August 2012 about the work being “very heavy” and “difficult”, SR engaged a third care worker which meant the claimant could reduce to working two days per week. SR understood that this was what the claimant wanted. SR did not discuss the reduction to two days with the claimant. The new care worker began work on 25 August 2012. The claimant had understood from their summer meeting that the third care worker was to cover for holidays and other absences.
The claimant’s position was that she had told SR about her problems, she found working with the respondent stressful and in late August they had employed a third care worker and reduced her to two days per week. On 28 August 2012 the claimant left the employment and only told AE that she was leaving. The claimant accepted that she did not given any prior indication or notice of her intention of leaving the employment to the respondent.
On returning from holidays on 13 September 2012, SR discovered that the claimant had not attended work since 28 August 2012. She phoned the claimant on 15 September and discovered she had left the employment. The claimant alleged that she had been unfairly treated. SR asked her to return. She did not want the claimant to leave as her mother was very fond of her and wanted her to stay. However, despite SR’s persuasion the claimant did not change her mind. AE continued to work in the employment.
Determination:
The claimant alleged that she was constructively dismissed from her employment with the respondent.
Section 1 of the Unfair Dismissals Act defines constructive dismissal as:
“the termination by the employee of his contract of employment with this employer whether prior notice of the termination was or was not given to the employer in the circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”
Thus, in applying the reasonableness test to a constructive dismissal claim, the conduct of the employer and reasonableness of the employee’s response is examined.
It was common case that a very good relationship existed between the claimant and the respondent’s parents. SR took a certain interpretation of what transpired at the summer meeting and of some of the claimant’s entries in the care diary and believed that employing a third carer and reducing the claimant’s hours to two days per week would resolve the claimant’s complaints/problems. The Tribunal accepts that SR, albeit mistakenly, had acted in good faith in taking the steps she did. However, SR ought to have clarified the issues with the claimant and in particular whether reducing her work to two days per week would resolve her problems. It was not reasonable for the claimant to leave the employment, in which she cared for the respondent’s highly dependent parents, without giving any prior indication that she was so doing and thereby denying the respondent and SR an opportunity to deal with her problems. The Tribunal notes that SR subsequently made some effort to get the claimant to return to the employment. The Tribunal unanimously finds that the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)