EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Malin Kelly -claimant UD1576/2011
against
S.M.T. Consultants Limited -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Clancy
Members: Mr. W. O'Carroll
Ms H. Murphy
heard this claim at Ennis on 21st February 2014
and 14th July 2014
Representation:
_______________
Claimant: Mr Patrick Moylan, O'Kelly Moylan, Solicitors, Market Square,
Kilrush, Co. Clare
Respondent: Ms Eugene Housten B.L. instructed by,
Mr. Gerard Flynn, Michael Houlihan & Partners, Solicitors,
9-11 Bindon Street, Ennis, Co. Clare
Following a Preliminary application concerning whether dismissal was in fact in dispute, the Tribunal determined that the claimant should give evidence first.
Claimant’s Case
The respondent company provides first-aid training to businesses. The claimant lives beside the respondent offices which are located beside the respondent’s residence. The respondent owners are MK and GK.
The claimant commenced employment in September 2002 as an office administrator until she moved to a combination of sales and administration in 2006. In 2008 the claimant’s role became more fixed as a sales role until 2010 when she was asked to become the respondent’s first aid trainer. The claimant was reluctant to move into this role as she had 3 children and the role involved a significant amount of travel. After extensive negotiations the claimant accepted the position under the understanding that she would only have one overnight stay per month. There was also €100.00 expenses paid per week in addition to any petrol costs when travelling.
In October 2010, after the claimant completed her training she took up the new position; when she was not out training she completed her sales role in the office. The respondent owner’s daughter had joined the company in the summer of 2010 and took over some of the claimant’s sales role duties. The volume of travel became excessive very quickly. In or around February 2011 the respondent then told the claimant it would be better if she stayed overnight ‘so I wouldn’t look so tired.’ The claimant raised her concerns regarding the volume of travel in December 2010 and reiterated that the volume of travel was the reason she had not thought the role would be suitable for her in the first instance.
The claimant’s travel expenses were paid by cheque every Friday. On Friday the 18th March one of the respondent owners was off so their daughter said she would look after the expenses. This did not happen so the following Friday the 1st of April the claimant again requested her expenses. The claimant was informed that the expenses entitlement had changed and that now in order to qualify for the €100.00 she would have to be out of the office for more than 3 days. The claimant was shocked as they had changed her terms of employment without any consultation.
On the following Sunday evening (3rd of April 2011) the claimant walked over to the office to load up her van for travelling on Monday morning and to discuss the change to her expenses. She called to the respondent’s house as they were not in the office. When the claimant queried the situation, MK got immediately defensive but GK let her speak; their response was ‘take it or leave it, we can get other trainers for €100.00 a day.’ The claimant wanted a solution so suggested she revert full-time to her previous role in the office but the respondent said it no longer existed. As a result of this, the claimant informed the respondent that she would no longer be willing to travel until her expenses were re-instated and she would be in the office in the morning.
The claimant was so stressed by the situation she decided to call in sick on Monday morning; she attempted to call at 7.30am and before 9.00am but there was no answer. She eventually got in contact with GK and went to her GP and got a medical certificate for the week.
On the 4th of April the claimant received a letter stating;
‘I refer to your resignation at short notice from your job at 10.00pm on the 3rd of April 2011. It is with regret that I wish to confirm acceptance of your resignation from the company from this date.’
The claimant was ‘gobsmacked’ as she did not intend to resign, her job was very important to her. The claimant’s mobile phone was also cut off on the 4th of April.
The claimant responded by letter of the 6th of April stating that;
‘I did not resign from my post. I was completely shocked and hurt when I read the contents of your letter. I am off work this week as I am on sick leave…I notified your office that I was on sick leave on Monday morning. I spoke to GK on that occasion. I subsequently sent my sick leave certificate to your office.’
The respondent again wrote on the 7th of April 2011 regarding the ‘resignation of employment’. The respondent returned the claimant’s medical certificate and enclosed her P45 and holiday entitlements.
The claimant sought legal advice and her representative wrote to the respondent on the 11th of April 2011 again disputing any resignation took place and that she is on sick leave as a result of stress. The respondent was requested to clarify the position regarding dismissal or redundancy. There was no response from the respondent so two reminder letters were sent.
On the 12th of May 2011 the respondent replied to the claimant through their legal representative. The letter stated, ‘My client has considered the matter and is willing to let your client reconsider her resignation…subject to the Company’s provision that the Company reserves the right to initiate its disciplinary process in respect of your clients conduct on the 3rd of April 2011.’
The claimant had never been involved in any previous disciplinary issues. The claimant responded on the 18th of May stating that she cannot reconsider her resignation as she did not resign and the letter further stated that ‘My client does not believe she could ever go back to work with your client as the relationship has clearly irretrievably broken down.’ The claimant requested her Personnel file which was never provided to her.
The claimant gave evidence of her loss and her attempts to mitigate her loss.
On the night of the 3rd of April the claimant did not request a pay increase. The claimant’s pay had been altered but the claimant only became aware of it when payslips were produced for the Tribunal. The claimant did leave the van keys as she had made it clear she would not be travelling on the following Monday morning. The claimant did not resign on any previous occasion. The claimant set up her own company with a business partner on the 23rd of June 2011 but it is no longer trading.
Respondent’s Case
GK, one of the respondent owners gave evidence that on the night of the 3rd of April 2011 the claimant called to the respondent’s house to collect the van keys for the following morning. The claimant asked to speak to the respondent owners about a pay rise. The respondent refused the pay increase. The respondent felt the claimant was ‘holding a gun to our heads’ as she was due to provide training for a client the following morning. The claimant said that if she didn’t get a pay rise she would resign. The respondent asked her to think about it, as if she wanted to resign the respondent ‘might accept her resignation’. The conversation continued resulting in the respondent accepting the claimant’s resignation and the claimant leaving the van keys. The respondent owners were shocked as they trusted the claimant; they were neighbours and had known her a long time. The respondent had to cancel the training for the following day as they could not get a replacement for the claimant. The previous year the claimant had also threatened to resign but ultimately continued working.
The respondent disputes that the €100.00 expense was paid regardless of the volume of days worked out of the office. The claimant’s pay was reduced but the respondent is not aware if he informed the claimant about it as her net pay remained the same. The claimant declined to reconsider her position; the respondent would have considered taking her back as they had previously done. When the claimant resigned she did so in a calm and collected manner.
Determination
It is the view of the Tribunal that the claimant resigned in a heated situation and the respondent accepted her resignation. The claimant immediately provided a medical certificate to the respondent to cover her absence and in so doing indicated that she still considered herself an employee. The claimant also indicated that, in her mind she had not resigned. The respondent, in returning the medical certificate, cutting the claimant’s phone off and issuing her P45 and holiday entitlements by return, effectively dismissed the claimant.
The Tribunal find that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds but that the claimant heavily contributed to this dismissal. The Tribunal find that an award of €15,000 is just and equitable in all the circumstances.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)