UD1776/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                          CASE NO.

Karen Stapleton

- claimant                                                                                            

                                                                                                                                 UD1776/2012

against

St Colman's (Claremorris) Credit Union Limited

- respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Dr. A. Courell B.L.

Members:     Mr. D. Morrison

                    Mr T. Gill

heard this claim at Castlebar on 15th May 2014 and 23rd July 2014

Representation:

_______________

Claimant(s) :         Mr. Evan O'Dwyer, Crean O'Cleirigh & O'Dwyer, Solicitors,

                              Ballyhaunis, Co Mayo

Respondent(s) :     Purdy Fitzgerald, Solicitors, Kiltartan House, Forster Street, Galway

Claimant’s Case

The claimant worked for the respondent credit union from 2005. She enjoyed her work and worked without any issues or problems for a number of years. On 7^th June 2011 she was provided with a copy of the respondent’s bullying and harassment policy (it was left on her desk). She was not presented with a contract of employment until June 2012. She gave evidence that on the evening of 19^th June 2011 she was out socialising when she was approached by a member of the public and accused of bullying a fellow employee of the credit union known as (L). She was aware that (L) had been absent on sick leave at the time but was unaware of the reason for her absence. She gave evidence that it was also stated to her that an investigation was going to be conducted by a Human Resources consultant into allegations of bullying and that she was going to be dismissed from her employment.

A number of days later she raised the issue with the manager Mr K informing him of what she had been told on the evening of 19^th June 2011. She was told that the matter would be addressed by Mr. (C) Human Resources Consultant at her annual appraisal. He was employed by the credit union to resolve ongoing issues and improve staff morale. No mention of issues in the workplace was mentioned during that appraisal meeting.

During July and August the air of tension remained but no allegation was ever put to her. She continued to attend work and carry out her duties to the best of her abilities. She gave evidence that she then had several meetings with the board of the credit union but was never informed of the allegations against her. She met Mr (C) in November 2011 and he did not raise the issue of any bullying allegations. Employee (L) remained absent on sick leave during this time. A meeting was arranged between the parties to bring about a resolution to the issues but this meeting was cancelled and never subsequently took place.

She told the Tribunal that (L) then returned to work from her sick leave absence for a period of time but, approaching Christmas 2011, was again absent on sick leave. However during her sick leave absence she, (L) met with the chairman of the board and other staff members in the workplace. The witness attended her doctor on 1^st February 2012 and was certified as unfit for work due to the stress of the entire situation. On 24^th February she received a telephone call from JT the vice chairman of the board asking about her wellbeing and expressing an interest in having the issues resolved.

On 27 February 2012 she returned to work from her sick leave absence. (L) was also at work at this time and they worked together in the same office. She gave evidence that there was no attempt made to bring about a resolution to whatever the alleged matters were. She continued to work until June 2012 when she was again deemed unfit for work. She submitted medical certificates for her absence and during this time a meeting was arranged at her house with the monitoring committee of the credit union. She gave evidence that she then received a letter from the credit union stating that there were no allegations made against her. She was thrilled to receive this letter and was satisfied to return to work. Before she did so she made a number of requests from the credit union. She wanted equality of treatment with other employees and sought an apology from the board of the credit union. She requested arrears of wages as her wages had been stopped at the end of May 2012. As she had not done anything wrong she requested that her sick leave absences be zeroed. She requested that her pension entitlements be re-instated and looked for re-imbursement of her medical expenses. Finally she requested that (L) be reprimanded in line with the company’s policy on bullying. She received a letter dated 25^th May asking her to attend mediation and she confirmed same but looked for items of data from the respondent. The mediation never took place.

A meeting then took place on 17 September 2012. She was present and represented by her solicitor. A number of members of the board were present on behalf of the credit union. At this meeting she was presented with a letter by the board which she was requested to sign withdrawing her aforementioned demands. She gave evidence that she was told that if she did not sign the letter she would be dismissed from her employment. She told the Tribunal that her solicitor was prevented from taking notes at the meeting. The meeting ended without any conclusion to the matter and she presented herself for work on the following morning as she had a fit to resume medical certificate. She began her work duties and at 11.10am she was called to a meeting. JT and her manger were in attendance. She again reiterated her previous requests and she was then told to leave the building and give back her keys. She understood from this that she was dismissed.

She told the Tribunal that she received a letter approximately one month later requesting her to engage in a grievance process. She believed that she was dismissed at this stage and gave evidence that her position was subsequently filled on a part-time basis by JK’s daughter. She was never provided with a P45 and did not resign from her employment.

The Tribunal heard further evidence in relation to her efforts to mitigate her loss. She is currently employed in another credit union covering maternity leave. This work is due to conclude in November/December 2014. The claimant indicated that her preferred remedy is reinstatement.

The claimant’s solicitor called the then chairman of the board. He told the Tribunal that he had written letters to the claimant on behalf of the board. He had no H.R. experience but the manager of the credit union might have been part of the problem so he was not involved in the written correspondence. He agreed that in hindsight the situation could have been handled differently. The HR consultant was recommended and brought in to sort out staff relations but it didn’t work. He did not know who the original complaint was made to and there was no written documentation regarding it, as far as he was aware.

He said that a monitoring committee was set up to try and sort out staff issues. He went to the claimant’s house to try and resolve things. Asked if a similar meeting was held with L he said, no. He was unsure of who advised him to write a letter asking the claimant for a fit to return to work cert and asking her to attend the respondent’s doctor. He said that no one person would have the authority to dismiss the claimant, it would have to be approved by the board. She was never dismissed, maybe asked to leave but not like “don’t ever come back”. They wanted her to withdraw her demands and come back to work. Asked why he mentioned her resigning in his letter to her of 12^th October he told the Tribunal that the board must have reached that conclusion.  

Respondent’s case:

JK gave evidence of being the board secretary who attended the board meetings. He told the Tribunal that the matters of disquiet and people not getting on were brought to the attention of the board. Nobody had any human resource background so he arranged for Mr C to become involved. He arranged for new policies and procedures to be drawn up.

JK was in attendance at the meeting which took place at the claimant’s house. They listened to the list of demands and were unanimous that they couldn’t accede to any of them. As things dragged on another meeting was held at a hotel. The claimant brought her solicitor and the committee felt intimidated by him. Much debate went on as to whether he should be in attendance or not and nothing got resolved.

JK said that he knew the claimant all of his life. He told her to drop the legal stuff and come back to work. She had friends on the board and it would have got sorted. On the morning of her return he got a phone call to say she was in the building. She wasn’t expected so she was asked to the office. He told her she couldn’t return until her demands were withdrawn, “go home and think about it”. She was never dismissed.

JT vice-chairman said that the claimant had never had any disciplinary issues previous to this.

He said that dismissal or resignation of the claimant was never discussed by the board. He pleaded with her to withdraw her demands and use the grievance procedures put in place by Mr C. He confirmed that L is still an employee of the respondent.

Determination:

Minority opinion:

The claimant was dismissed from her employment on the 18^th September, 2012. In or about the 19^th June, 2011 the claimant was made aware that an unspecified allegation of bullying had been made against her. Thereafter, she had to endure the stress and confusion of knowing that there were certain vague accusations being made against her. However, no allegations were ever put to her. The stress of the situation took its toll on the claimant’s health and she went on certified sick leave for a time. None of the various meetings which took place addressed the allegations being made against the claimant, or indeed, the claimant’s grievances in relation to how she was being treated. Ultimately, on the 18^th September, 2012, in the starkest and baldest of terms, the claimant was told to leave her place of employment. The Tribunal finds that the claimant’s conduct was at all times beyond reproach and that her dismissal was both substantively and procedurally unfair.      

The minority finds that the claimant is entitled to redress and that the appropriate remedy is compensation rather than re-instatement. Re-instatement may be awarded as a remedy only when it is practicable to do so. In assessing whether, or not, it is practicable to do so, the Tribunal must have due regard, inter alia, to the stated wishes of the parties. The Tribunal must also be mindful of the fact that the parties will have to work together. In light of the evidence of both parties, it is clear that the relationship between the claimant and the respondent had irretrievably broken down. While the Tribunal finds that the claimant was entirely blameless as regards her dismissal, it would not be appropriate in this case to order re-instatement.

In assessing the appropriate level of compensation in his case the minority has regard to the loss suffered by the claimant and her efforts to mitigate her loss. In circumstances, where the claimant did not contribute in any way to her dismissal, the minority of the Tribunal measures compensation in the sum of €24,500.00  

Majority opinion:

The majority view of the Tribunal is that re-instatement is the appropriate remedy due to the following:

(a)   The claimant did not contribute in any way to her dismissal.

(b)  No procedures were adopted.

(c)   The dismissal was wholly and substantially unfair.

(d)  The claimants preferred option is for re-instatement.

In light of the above and based on the evidence produced to the Tribunal, the Tribunal unanimously finds that the claimant was unfairly dismissed. It is the majority view of the Tribunal that the claimant be re-instated within 6 weeks of this finding.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)