EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD24/2014
CLAIM(S) OF:
Sarah McCormack (claimant)
against
Lisa O'Brien, Little Folks Creche & Montessori (respondent)
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr J. Goulding
Mr A. Butler
heard this claim at Dublin on 2nd June 2015 and 3rd June 2015
Representation:
_______________
Claimant(s) : Mr. John Scott B.L. instructed by Ms. Patricia Brady, Brady & Company, Solicitors, High Street, Trim, Co. Meath
Respondent(s) : Mr. Denis Halton B.L. Mr. Tommy Cummins, HR Consultant, 195a Library Road Shankill, Co Dublin
The determination of the Tribunal was as follows:
Summary of evidence
The fact of dismissal was in dispute.
Background
The respondent operates a crèche child minding facility which was established in August 2011. The claimant was employed by the respondent as a Montessori teacher from 3rd October, 2011 until her employment ended on 19th September, 2013.
Claimant’s case
Giving evidence, the claimant told the Tribunal that she reported a number of concerns to the Supervisor (AO’B) the week before her employment ended. The Supervisor told the claimant that she would speak with the owner of the creche (LO’B). The claimant stated that she often raised concerns but that there was never anything done as a result. On the morning of 19th September 2013, SL, informed the claimant that LO’B had called her in to say she was letting her go. As the claimant felt that SL was a good worker she went to LO’B along with another member of staff, MMcC, to speak on behalf of SL. According to the claimant LO’B told her to “mind your own business” and “you can go too”. The claimant took this statement to be a dismissal and she left the office and went to the kitchen to get cover for the room she had been working in. LO’B asked the claimant for her key back. The claimant subsequently left the premises.
On 20th September 2013, the claimant sent a text message to LO’B requesting her P45. She received a response by e-mail on 25th September from LO’B stating that in order to process the P45 she would need a resignation letter from the claimant. The claimant stated that she did not write a letter of resignation as she had been dismissed and did not resign. The claimant felt she may have been dismissed because she had voiced her concerns.
Under cross-examination the claimant indicated that she did not question the dismissal as it was up to the respondent to come to her. The claimant accepted that she signed the grievance procedure policy but stated that she was not aware of its contents and did not make an official complaint in writing through the policy procedures. No appeal was made by the claimant as she felt intimidated and did not feel it would have made any difference. The claimant felt that LO’B knew what she was saying when she said “you can go too” and no effort was made to try to stop her from leaving.
MMcC gave evidence and stated that she was in the room on 19th September with the claimant and LO’B during which time LO’B told the claimant “she could go too”. When the claimant left the office LO’B asked MMcC to stay for the sake of the kids and she agreed to remain on. MMcC was called back in later on and was asked by LO’B to sign a letter relating to the incident. She went to the doctor the following day and then went sick. LO’B notified her within one week that she did not need her to work in the crèche going forward.
Under cross-examination, MMcC disagreed that the claimant had “walked out”. She did not feel she was intervening in a management decision in relation to SL but as part of the team felt she could voice an opinion. She did not read the letter properly that she was asked to sign as at the time she was upset. Subsequently she realised she had made a mistake signing the statement in relation to the incident.
Respondent’s case
LO’B told the Tribunal that she had a good relationship with the claimant. On 18th September 2013, she received a phone call from the Supervisor to say that she had a run in with SL.
SL was on a month’s trial and LO’B had already decided that she was not keeping her on. SL was three weeks into the trial period. The claimant said she was not happy that SL was being let go as she was a good worker. LO’B told the claimant it was not her affair and said “I am leaving with her”. LO’B told her then there was nothing she could do about that and the claimant said that “it was not the last she would hear”. The claimant left the premises with SL.
When LO’B asked MMcC to sign the letter in relation to the incident, MMcC stated that it was “straight to the point”. When the claimant asked for her P45, LO’B was advised to request a resignation letter. LO’B was forced to close a section of the crèche as a result of the staff depletion.
Under cross-examination, LO’B stated that the claimant had only worked with SL for three weeks. She stated that there was nothing she could do when the claimant decided to leave. LO’B denied saying “you can go too” to the claimant. LO’B drafted the statement letter that MMcC signed recording the incident. LO’B did not try to contact the claimant in the aftermath as things were very busy in the crèche.
AR, Supervisor told the Tribunal that she worked well with the claimant. On 19th September she went to LO’B to sort lunch cover and LO’B informed her that she had let SL go. There was a knock on the door and SL said “I’m out of here and the girls are coming with me”. SL said that the claimant and MMcC wanted to speak with her. AR said she would leave the room and so did not witness the incident. Soon after, the claimant came to AR and said “I’m out of here you need cover”.
CW gave evidence and stated that she worked in the Montessori room. She was not aware of what was going on. On 19th September AR was working with her when SL and the claimant came in and SL said she had been let go. The claimant explained to her that she was told to mind her own business and the claimant said “I’m going”. CW saw the claimant a week or two later when she came to drop back her uniform.
Under cross-examination, CW stated she was not in the office at the time with SL, MMcC and the claimant and had no knowledge of what was said.
The claimant gave evidence of loss and efforts to mitigate her loss.
Determination
Having carefully considered the evidence in this matter, the Tribunal have determined that the claimant was dismissed and that this dismissal was unfair.
The reason that the Tribunal have decided this is that the claimant was asked for her keys and to clean her uniforms and return them to the respondent. This convinces the Tribunal that the decision was that of the respondent. None of this evidence was denied by the respondent.
In the circumstances, the Tribunal must follow the preponderance of the evidence in the case and make the decision as aforesaid. The Tribunal have determined that the most appropriate remedy is compensation and awards the claimant €7,000 under the Unfair Dismissal Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)