EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Samantha Rock UD614/2013
against
Irish Custom Extruders Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey BL
Members: Mr. D. Peakin
Mr. J. Flannery
heard this claim in Dublin on 28th April 2014 and 30-31 October 2014 and 14 January 2015
Representation:
Claimant(s):
Ms. Eithne Reid O’Doherty BL instructed by
Ms Yvonne Flanagan, Flanagan Lavery, Solicitors,
4 Cedar Square,
Grove Avenue,
Blackrock,
Co. Dublin
Respondent(s):
Ms. Claire Bruton BL instructed by
Denis McSweeney Solicitors,
Grand Canal House,
1 Upper Grand Canal St.,
Dublin 4
The determination of the Tribunal was as follows:-
It was the claimant’s case that the claim before the Tribunal was one of unfair dismissal rather than constructive dismissal. It was the respondent’s case that the claimant left the employment but the respondent agreed to commence the evidence with the respondent’s witnesses on a without prejudice basis and left it to the Tribunal to decide the nature of the dismissal.
The claimant worked with the respondent for some thirteen years. Initially, she worked on the factory floor and was highly thought of to the point that she was given an office position in stock administration overseen by DM who, not least because she was another female in a male-dominated workforce, struck up a close friendship with her.
However, it appeared that the claimant’s time in her office position was marked by errors and omissions initially covered for by DM but which came to the attention of TD (managing director) who became concerned that the claimant’s propensity for error could have a very damaging consequence for jobs in the respondent’s workforce. Warnings right up to final warning were given. It was argued that it was pointless to appeal a warning signed by TD to directors subordinate to TD but the respondent argued that the other directors in question were not subordinates as much as major shareholders.
Despite the fact that TD and DM were both very well-disposed towards the claimant and went to a lot of trouble to monitor her and guide her it was ultimately decided to end the claimant’s employment in the respondent’s office. However, it was decided that the claimant could go back on the factory floor where she had historically performed so well and that she would not suffer any fall in salary. Nevertheless, the claimant, assisted by her father, found this unacceptable and all employment with the respondent ended.
EH (operations director), in sworn testimony to the Tribunal, said that he had drafted wording for the claimant so that the respondent could receive something in writing after the respondent heard that the claimant no longer wished to proceed with a grievance she had raised. Also, EH did not dissociate his name from the final written warning that the claimant had received. He said that TD was often away on business and that it was not infrequent that he would carry out a function in TD’s absence that TD might otherwise have carried out himself.
However, EH did not accept the contention that he should have been constantly cognisant of how the claimant was performing and even that he bore some degree of responsibility for ensuring that she got all possible guidance and training. He went so far as to say that some errors went beyond the remit of a training course and were just discrepancies that should not happen. EH said that TD, as managing director, bore responsibility for the respondent’s personnel work within the small company that was the respondent and for any due monitoring of the claimant’s day-to-day performance. EH did agree with one thing said by TD in that EH also feared that something injurious to the respondent (and the jobs within it) could result from an error made by the claimant when dealing (or neglecting to deal properly or at all) with another company.
When the claimant gave sworn testimony to the Tribunal she evinced disagreement with the respondent’s assessment of her performance. The Tribunal was informed that there was no trade union membership within the respondent such that the claimant’s father was the one who attended with her when she engaged with the respondent. It was argued many times for the respondent that it was not for the Tribunal to conduct the respondent’s disciplinary process at the Tribunal hearings if the claimant had not taken the opportunity to disagree with the respondent during her employment when performance-related shortcomings were put to her.
The Tribunal was given the claimant’s perspective on her financial loss since the end of her employment. It was argued that the fact that she had been in educational training since late 2013 should not greatly lessen the amount of compensation she was seeking.
Commenting on her work performance, the claimant said that there was not always someone to sign a document when needed and that her workload got worse when DM went on maternity leave. Even though employees went on a three-day week (such that there might be less production) there was work of a social welfare nature to be done. Her workload got heavier; paperwork had to be done for employees. The claimant maintained this position even when it was put to her that three people said different. The claimant disputed that JD had helped her. The claimant said that JD had just done work for DM. When it was put to the claimant that DM had been available to assist the claimant the claimant replied that DM (who had taken maternity leave) had been at home.
The claimant denied having been told by DM about a verbal warning. Asked why she had not written to the respondent about having been warned, the claimant said that she had communicated her feelings verbally and had invoked the grievance procedure.
In respect of two occasions when the claimant did commit her dissatisfaction to writing the claimant was asked why (given that TD said he never got the first one) she had not referred to the first one in the second one. She replied that she had thought the respondent was dealing with it and that she had not known as to the outcome of her first communication when doing the second one. She had not realised that she had not signed the first one.
Asked why she had not followed the respondent’s practice of sending invoices by post, e-mail and fax (thereby giving herself proof of having done the work) the claimant replied that it had been the respondent’s practice to post them. She accepted that she had taken a warning rather than appealing it to EH and that, before a meeting, the respondent had said that she could bring someone and that it was serious.
Regarding an error involving thousands of euro, the claimant said that she had specified that the amount concerned should not be taken into account and knew straight away what had happened when she heard what had happened. When it was put to her that DM had found the error and that the claimant had not disputed it the claimant replied that she herself had found it and that she had disputed all allegations made against her. The claimant stated that the respondent had incurred no loss and that no warning had been warranted. She said that she “would have” challenged what was alleged against her. She did, however, accept that there had been mistakes and that she had given DM an incorrect document which DM had said did not look right; the claimant gave the correct spreadsheet on the second day after having had another one on the first day.
The claimant said that she had expected that her grievance would be heard correctly but that the respondent had not followed up. She had thought that the respondent would follow its own procedure.
The claimant disagreed when it was put to her that production had decreased by a third (rendering the respondent less busy) even if three the respondent executives took the opposing view.
When it was put to the claimant that she had withdrawn a grievance she replied that DM had expressed happiness with her and that she had been told that she had improved. However, she had subsequently re-invoked the grievance procedure.
The claimant rejected the suggestion that she should have asked for more training saying that she had not needed it but that her workload had been too much for one person. She had not been afraid of training but it had not been offered. She had asked for help at every meeting.
It was put to the claimant that she had not been able for the work and had made mistakes in 2012. The claimant accepted that she had been warned but said that she had wanted her grievance heard. She felt that she was being over-monitored and that TD had been looking for mistakes.
The claimant accepted that she had met DM regularly but she re-iterated that the workload was increasing when it was put to her that she had continued to make mistakes.
The claimant said that she had been very upset when the respondent had terminated her employment and that, being asthmatic, she could not go back to working on the factory floor where she thought she would have a lower salary though the respondent disputed this to the Tribunal. She thought that she had been dismissed by letter and said that she had consistently received social welfare on the strength of it even if the respondent had subsequently written to her as if she were still an employee. The claimant rejected the contention that her unfair dismissal claim was opportunistic. She said that her decision to go to college was because, without qualifications, she could not mitigate her loss by getting an administrative job.
Asked why she had not more evidence of seeking work, the claimant replied that most applications were made online. She had even been prepared to handwrite an application but she got very few replies. She was a single mother who had not been able to get a full-time job without embarking on formal educational training. She was available after 4 p.m. and was working part-time.
Giving sworn testimony, PR (the claimant’s father) said that the claimant had started working for the respondent in 1999 and had been happy initially. She gained promotion and was progressing. He said that she had an unblemished record until a problem arose in 2012. He had not seen a written warning which she had received.
The claimant rang PR to attend a meeting in spring 2012. TD and DM attended. TD came up with a list of complaints. PR felt that TD was intimidating and did not let the claimant reply. PR asked to see the respondent’s grievance procedure. The respondent’s representative objected that this testimony had not been put to the respondent’s witnesses and said that she would not cross-examine on testimony that had not been already put to her side. The Tribunal asked the claimant’s representative to stick to what she had told the respondent that PR would say.
PR said that he had been a project manager for community groups and that he would tell people to invoke their grievance procedure. He did not accept the contention that an employee should give detail as to the grievance before an employer should have to address it.
On 3 December PR attended with the claimant when a letter was given. PR told the claimant that she had lost her job. He said that he would not talk to TD or DM. He saw no point in a meeting. The claimant sought other employment. He pointed her in different directions and she applied for different positions.
Asked if the claimant had had the intention to go back to education, PR replied that this had not been until she had lost her job whereupon she had embarked on upskilling.
PR said that it had been in the respondent’s knowledge that the claimant could not return to the respondent’s factory floor because she had three inhalers and the respondent must have known about her severe asthma. He denied that it had been opportunistic to leave the respondent’s premises as soon as the respondent mentioned terminating the claimant’s employment and rejected the suggestion that he and the claimant should have engaged with the respondent about a position on the factory floor or even sought shift work from the respondent when she had to mitigate her loss after her employment with the respondent.
Determination:
The claimant’s representative sought to introduce claims under the minimum notice and holiday legislation however the respondent was not on notice of these claims and objected. Consequently, the Tribunal does not have jurisdiction to hear these claims.
Having carefully considered the evidence adduced and submissions made, the consensus of the Tribunal is that there was not an unfair dismissal in this case. While the wording of the letter of 3 December 2012 clearly refers to terminating the claimant’s employment in the office it also mentions giving the claimant her old position back on the factory floor, albeit that the letter does not inform the claimant that her salary would remain unchanged. The claimant and her father walked out of the meeting at which this letter was produced.
There were clearly performance issues relating to the claimant’s employment which despite many attempts could not be successfully addressed. The respondent made efforts to contact the claimant after the meeting on 3 December 2012. However, the claimant considered herself to be dismissed and refused to engage notwithstanding the fact that there was clearly an offer of her old job being made available to her on the same terms and conditions as her office job. The Tribunal understands this may not have been to the claimant’s satisfaction but having regard to the performance issues the company would have been within its rights to dismiss the claimant on competency grounds. The company instead provided the claimant with a reasonable alternative to this. In all the circumstances the Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007, must fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)