EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Yvonne O Connell UD938/2013
- claimant
Against
Flightcare Multiservices Ireland Limited
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr J. Goulding
Mr J. Jordan
heard this claim at Dublin on 5th September 2014 & 14th November 2014 and 14th January 2015
Representation:
Claimant: Ms Niamh O’Donnabhain BL, instructed by Mr. Frank Nyhan, Frank Nyhan And Associates, 11a Market Square, Mallow, Co. Cork
Respondent: Mr. Bill Austin, IR/HR Executive, IBEC, 84/86 Lr. Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
This being a case of constructive dismissal it fell to the claimant to present her case first.
Claimant’s Case:
The respondent operates as a cleaning services contractor at Dublin Airport. The claimant commenced employment on 24th June 2011 in the role of Station Manager. She was interviewed for the role by the then Vice President of the company. Her role entailed managing staff and overseeing aircraft turn around. She had worked in a similar role in other airports.
In the initial days she became aware that the staff were demoralised, overworked and under pressure. She reported to CC who initially was very supportive and trained her in on her role. Furthermore, during the course of her employment the claimant was given the use of a company car. The claimant stated that she immediately came to grips with her job description. She did not encounter any difficulties as she had carried out a similar role in her previous jobs. On her return from holidays in July 2012 she noticed CC’s attitude had changed towards her. She felt confused but at the time did not read too much into it. In or about this time a complaint was made by US Airways that an aircraft had not been attended to in a timely manner. The claimant spoke to MC, Operations Manager and husband of CC, and asked him to take care of the aircraft as she was not in a position to deal with it. On her return CC became very aggressive towards her and complained about the aircraft being left unattended. The claimant was taken aback. She explained that she had left MC in charge but CC told her it was her responsibility as she was the Station Manager. An argument then ensued between CC and MC. Immediately after, CC told the claimant that in future she would be cleaning the aircraft. The claimant was shocked with this as her role involved overseeing the cleaning rota rather than actually cleaning the aircrafts. Following this incident her role included cleaning aircrafts until lunch time and after lunch she caught up with her paperwork.
At this juncture the claimant felt overwhelmed and was working twelve hour days. She felt badly treated by CC therefore she spoke to SMcD in HR who queried with her whether she wanted to make a formal complaint or not.
Following CC’s return from holidays she emailed the claimant asking her to return the company car on short notice which she was surprised at. The claimant loved her job and wanted to keep her job but felt she had no choice but to make a formal complaint to SMcD in HR.
A grievance meeting took place on 12th September 2012. MW, Vice President of HR in the UK branch of the respondent company met the claimant and CC separately. He told the claimant that he would interview relevant colleagues in due course, type up his report and send it to her. However, the claimant knew that MW left Dublin without interviewing anyone else. The claimant emailed MW to say she felt let down. Forty five minutes after she sent the email to MW he replied saying that he was very busy but he would get back to her.
The claimant was absent on sick leave from 11th to 19th October 2012 and on her return she was asked to attend a disciplinary meeting. The claimant felt criticised for not telephoning CC the first morning of her illness which had never been an issue before when she was on sick leave. CC continued to ignore the claimant and refused to answer the claimant’s emails and did not return her calls. Her lap top was swapped for another one and she was unable to retain copies of all the emails sent to her.
The claimant gave evidence that she felt she could not continue to work being constantly berated and criticised by CC. The claimant stated that she and CC agreed to meet informally to discuss the matter in late October. At this informal meeting she suggested to CC that she would seek another job and leave to which CC agreed. As part of this conversation CC asked the claimant to withdraw her complaint. The claimant was not happy with this but CC wanted her to retract her complaint saying that the allegations of bullying were being talked about generally and would have an adverse effect on her career. The claimant was not happy about this request but at this juncture she had lost faith in the investigation process which had commenced in early September with no resolution. From the claimant’s point of view MW did not really investigate her grievance, did not interview anyone but herself and CC and had not yet made a decision. In fact he had emailed her to say he was busy. On 25th October 2012 the claimant emailed MW to say that a decision in the investigation was no longer required, she and CC had sorted out their differences therefore she effectively withdrew her grievance.
The claimant attended an appraisal meeting with CC on 13th December 2012. She was told she needed to improve and every aspect of her job was criticised. She felt that the process was very negative and amounted to a ‘hatchet job’ and as a result she did not engage with the process. She signed the review form when the review had ended but the form had not been fully completed. She was very upset by the meeting and felt violated. She was offered the company support system helpline by HR but thought it pointless to ring this number.
At this juncture the claimant stated that she felt that she could not go on in her job. She was unwell, on medication and very stressed. Furthermore her confidence was knocked as a result of the treatment she received. While she had no other employment at this stage she felt that, for her health’s sake, she had to leave the respondent company. On 19th December 2012 she gave notice of her intention to terminate her employment. When queried as to whether she notified anyone in the respondent company about her health issues or her dissatisfaction in her job the claimant stated that she did not. She no longer trusted SMcD and felt that because of the way her previous grievance was dealt with there would be no point raising a second one or reinstating the first one. She wished to leave as quickly and as cleanly as possible as she felt that no one within the company was amenable to helping her.
.
Respondent’s Case:
CC gave evidence. She has been with the respondent since 2004 and has worked in Dublin, Belfast and Cork. The claimant reported to her and both got on well together up to July 2012. In or about mid-July the team received complaints from two customers regarding delays in cleaning aircrafts. She asked the claimant to conduct an investigation to ensure the delays did not happen again. At that time the claimant told her that she had not had time to investigate the complaints to which CC replied that if the claimant did not do it she would have to investigate the matters herself. She had asked the claimant to do this on three previous occasions. CC does not feel she acted in a threatening manner as suggested by the claimant and at no stage did she feel she berated the claimant.
In response to the complaint from US Airways regarding the cleaning of the aircraft CC indicated that the customer had threatened to withdraw its contract with the respondent. In order to save the contract the customer required either CC or the claimant to be present on the aircraft for the next couple of weeks therefore CC and the claimant were to work alternate weekends to facilitate this request. It was essential that everyone on the team pitch in and clean therefore the claimant was not singled out and asked to clean. The job was hands on and at times management are expected to clean. Following this incident CC thought matters were resolved and was not aware of any further difficulties the claimant may have had. In fact she did not think the relationship between them had deteriorated materially.
When queried about the ramp car that the claimant used she indicated that it was a ‘pool car’ at the disposal of all staff, it was not in the exclusive use of the claimant. When the ‘pool car’ was required by another staff member CC gave the claimant a few days’ notice of the request but felt that the claimant would have liked more notice.
CC could not recall when she became aware of the complaint made against her by the claimant and did not know the basis for this claim. She had an informal meeting with MW and SMcD in September 2012 wherein she was told that MW was investigating a claim of bullying against her by the claimant which she denies. CC continued to work with the claimant despite relations being strained.
CC was aware that the claimant was absent from work in October 2012 and understood her leave related to dental problems. She indicated that on the first day of sick leave the claimant did not telephone her to notify her as policy required. The following day she received an email from the claimant to notify her of the illness. CC gave evidence that on the claimant’s return to work she accepted that she should have telephoned on the first day. The claimant had very little sick leave so the issue had not arisen previously.
When queried about the informal meeting dated 22nd October 2012 CC stated that the claimant told her that she had secured another job and would be leaving. The claimant said she was frustrated with the investigation but she would withdraw the complaint. CC wanted to see the outcome of the investigation. She had never been the subject of a grievance before and went to HR asking that it be concluded as she wanted to clear her name. MW ultimately sent her an email saying the complaint was withdrawn by the claimant and the investigation was closed.
On 13th December 2012 an appraisal meeting took place with the claimant. This was not unusual as all managers have appraisals with staff at some stage or another. CC felt the meeting was constructive and went well. The main issue CC raised with the claimant was the need for improved communication with managers. The claimant was good at her job but needed some development. CC did not know the claimant had resigned until SMcD informed her. It was CC’s evidence that was not aware that the claimant was suffering from stress or any other health issues at the time of her resignation.
SMcD gave evidence. She is the HR manager for the respondent for its Irish operations. She did not work directly with the claimant who reported to CC who in turn reported to MW. The claimant initially came to her in August 2012 with a complaint about how CC treated her following an incident in July 2012 following which SMcD advised her to put the complaint in writing.
On 22nd August 2012 SMcD and MW met separately with both the claimant and CC. The main issues discussed were customer complaints and the threatened loss of the US Airways contract. MW went through the claimant’s complaint with her wherein she was advised that she could proceed to make a formal grievance if she wanted. She decided at the end of the meeting to make a formal grievance but agreed that in the meantime both the claimant and CC would continue to work together. The investigation commenced and was conducted by MW.
On 26th October 2012 the claimant raised a number of further issues with SMcD concerning her working relationship with CC. SMcD told her that she needed to address the issues with CC. In the afternoon the claimant came back to say that she had spoken to CC and matters were resolved. She withdrew her complaint and contacted MW stating that the investigation was no longer required. SMcD indicated that as far as she was concerned the matter was now closed. On cross examination SMcD did not agree that she had divulged details of the claimant’s initial complaints to CC directly. She agreed that she was approached by CC once she became aware of the complaint. Furthermore, she agreed that once the complaint was withdrawn CC came to her asking that the investigation be completed. At this juncture she advised CC that she could raise her own grievance if she felt it appropriate.
SMcD stated that she was not aware of any health issues the claimant may have had save for her sick leave in October 2012. When queried about the appraisal meeting in December 2012, which she was present at, she felt that it was a constructive meeting where both parties contributed.
MD who worked as a Station Manager in both Shannon and Cork Airports gave evidence. Her role was similar to the role carried out by the claimant. She stated that it was common place that all staff cleaned the aircrafts when required. She further confirmed that appraisals are carried out with all staff including management.
MW, Vice President of HR for the UK operations gave evidence. MW first became aware of the claimant’s complaint in early September 2012 from SMcD. MW travelled from the UK on 12 September 2012 to conduct a grievance meeting with the claimant and CC separately. In advance of these meetings he had read the claimant’s statement but had no further information.
On meeting with the claimant she stated that she had relocated from Cork to Dublin and had a very good working relationship with CC and then matters had deteriorated. The witness addressed the points raised by the claimant in her formal statement including the complaint raised by US Airways, the issue of a performance review on a member of staff in July following complaints from customers and the matter of the “pool car”. She further stated that she was instructed to clean aircrafts and she felt it was both humiliating and a demotion for her. The claimant told him that CR had been a witness. It was the witness’s intention to meet CR and hear his version of events however he never made any arrangements to do this in the weeks following the initial meetings with the claimant and CC. The claimant had been shocked and upset by the accusations being made against her and believed they were damaging her role in the company. During the course of the witness’s meeting with CC, CC refuted all these allegations. The claimant never raised an issue that her health had been impacted by her work. .MW took copious notes of the meeting. At the conclusion of the meeting he was optimistic that the relationship between the claimant and CC could be re-established.
Due to holidays and sick leave in the company MW experienced delays in completing his investigation and he felt that he had notified the claimant of this. On cross examination he did not agree that an eight week delay in concluding the investigation was unacceptable in these circumstances. The claimant emailed him in late October 2012 to inform him that she and CC had sorted out their differences. She indicated that she wished to withdraw her grievance therefore there was no need to conclude the investigation. MW stated that he was not surprised by this as he was left with the impression that the claimant would like a reconciliation with CC following her meeting with him in September 2012. In his reply to the claimant in November 2012 he noted that the grievance was withdrawn and that there was no requirement to conclude the investigation. He also stated at this juncture that, based on what he had heard to date, he was minded to agree with CC’s version of events. He felt it important to note to the claimant that this is where the investigation would have led. After he replied to the claimant in mid-November noting the grievance was withdrawn he confirmed that he received no further contact from the claimant. She did not re-instate this grievance or instigate a second one at any stage.
Determination:
The Tribunal considered the evidence of both parties carefully.
The claimant gave evidence that she had been isolated from management in the company. She attempted to use the grievance procedure on 28 August 2012 and in her opinion it was not being dealt with properly. As a result her evidence was that she had a conversation with CC and they had decided to deal with the matter themselves and attempt to repair the working relationship. The claimant voluntarily withdrew her grievance and instructed that there was no need to conclude the investigation.
The claimant resigned on 19th December 2012 following the appraisal process. She felt this process was a personal attack on her and conducted in a negative manner. She felt annihilated and she “switched off” during the course of the appraisal. In her letter of resignation dated 19th December 2012 she made no reference to the reason for resigning; however before the Tribunal she cited ill health as the reason. She was on medication suffering from insomnia and stress. It was her evidence she did not trust anyone in the company, she felt that there was nobody amenable to helping her and therefore did not notify these issues to management on or before 19th December 2012.
The respondent’s position is this is not a case of constructive dismissal. The initial grievance was withdrawn and never reinstated. No further grievance was raised despite the claimant being fully aware of the grievance procedures. The respondent was never notified of any health issues prior to the claimant’s letter of resignation dated 19th December 2012 save dental treatment received by the claimant from 11th to 22nd October 2012.
Constructive dismissal, which is defined in Section 1 of the Unfair Dismissals Act 1977 as:
““dismissal”, in relation to an employee, means—
(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in 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”.
It is accepted by the Tribunal that the claimant was very upset by the matters that arose from July 2012 onwards and that her health had deteriorated however the burden of proof rests on her to show that she had no choice but to leave her position with the respondent. She must show the Tribunal that her resignation was not voluntary and that the conduct of her employer was so unreasonable that she had no choice but to resign. Furthermore, it is incumbent on any employee to utilise and exhaust all internal remedies made available to her unless she can show that the said remedies are unfair. Unfortunately, the Tribunal feels that the claimant did not discharge the burden of proof in this case. It is clear that the claimant did not exhaust the internal procedures available to her. She voluntarily withdrew her grievance and did not afford MW an opportunity to conclude the investigation he started. It must be noted however that MW delayed considerably in progressing this investigation and gave no adequate reason for same. Furthermore, the claimant stated in evidence that her health was so adversely affected as a result of the treatment she received that she had to leave her employment with the respondent. However she did not give the respondent an adequate opportunity to address the impact of her job on her health as she did not notify any other member of staff or management of any health issues (save for her dental treatment in October 2012) before resigning on 19th December.
The Tribunal is unanimous in finding that the claimant did not discharge the onus of proof placed upon her to establish a case for constructive dismissal. The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)