UD2/2014

EMPLOYMENT APPEALS TRIBUNAL

 CASE NO.

UD2/2014

CLAIM(S) OF:                                           

Dawn Howell

against

St. Catherine's Association Limited

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms. M.  Levey BL

Members:    Mr. B.  Kealy

                    Mr. S.  Mackell

heard this case in Dublin on 3 March 2015

Representation:

_______________

Claimant(s):

               Ms. Susan Jones BL instructed by

               Ms. Jennifer Dutton for Mr. Simon Earls, Jones Magee Solicitors,

               1 Eglinton Road, Bray, County Wicklow

Respondent(s):

                Mr. Brian O’Sullivan, IBEC,  

                84/86 Lower Baggot Street,

                Dublin 2

The determination of the Tribunal was as follows:-

Giving sworn testimony at the Tribunal hearing, the claimant said that she started work for the respondent at a nursing home in May 2011. She was a key worker for a client. She said that she worked a minimum of thirty-nine hours per week. The Tribunal was given details of her earnings with the respondent. She could be called in on a day off. There were no problems until February 2013 when she heard of an issue with staff about driving. She was reported because she did not feel comfortable driving unaided a client with many disabilities.

The claimant received an e-mail from the respondent’s then director of services. She did not claim unavailability for a meeting but she wanted to have her trade union representative (CK) with her. After a meeting in that month of February 2013 the claimant was removed from the roster with immediate effect. She told the Tribunal that she had not received any letter in advance of the meeting. At the meeting the director leaned across the table and told her to get out. She was to be partially paid. She did receive three payments of which the Tribunal was told. In May 2013 the claimant, for the first time, got a letter giving the respondent’s reasons for dissatisfaction with her. The claimant called on CK (her abovementioned trade union representative).

Asked about the ultimate outcome of her disciplinary proceedings, the claimant told the Tribunal that she was notified in July 2013 and was delighted to see that her job was safe. She e-mailed the respondent. She understood that an existing roster had already been done but, even subsequently, she got no hours from FD of the respondent despite having asked for them. CK (of the claimant’s trade union) tried unsuccessfully to “sort it out”. The claimant went to a solicitor. Not having been assigned any hours after her exoneration the claimant deemed her employment over from November 2013 and claimed constructive dismissal. She had still not got a P45 from the respondent though she had sought it.

The claimant started a night degree and applied for day jobs. However, she had no reference from the respondent and found that it was not easy to deal with the job interview question as to why she had left her employment with the respondent. She had only obtained six weeks’ work though she had documentation to attest to strenuous efforts to mitigate her post-employment loss.

At the end of the claimant’s direct testimony the respondent’s representative requested that the hearing adjourn to another day so that the respondent could have more time to prepare especially as there had been many changes in the respondent’s staff since the claimant’s employment. The respondent wanted to check more. It believed that the claimant had never been dismissed.

On the question of whether the respondent could defend the case or not, the claimant’s representative objected to the facilitation of an adjournment on the grounds that the claimant could not afford another hearing and the respondent’s financial position could deteriorate. The respondent had the claim form to assist it in preparing its case.

The claimant had been told to get more hours from the respondent from July 2013 but none had been given.

The respondent’s representative said that e-mails could be obtained to contradict the claimant and witnesses could be called to give evidence about the investigation. It was put to him that this had been overtaken by events in that the disciplinary hearing had offered the claimant her job back and it was not seen how the respondent’s witnesses could assist. The Tribunal was told by the respondent’s representative that the respondent could give the claimant her job back on her previous hours and that the respondent was in dire economic straits.

The claimant’s representative said that she wanted a direction that the claimant had proved her case and that the remedy sought was compensation rather than any redress that would put the claimant back with FD who had not been forthcoming with hours of work for the claimant after July 2013.

The respondent’s representative said that he would send a submission within a week. The respondent told the Tribunal that it would provide a P45 to the claimant.

Determination:

Having considered all of the evidence, the Tribunal holds in favour of the claimant in finding that she was constructively dismissed. After a disciplinary hearing the respondent, by letter dated 5 July 2013, found in favour of the claimant and deemed her suspension as being paid leave and required that she should resume her duties forthwith. By e-mail dated 10 July she formally requested to be rostered for hours and was informed that the rosters were already in place up until August 2013.

However, thereafter, she was never offered any hours at all. Her union official (CK) also contacted the respondent on a number of occasions but failed to get any response. The claimant was left with no option but to resign on 18 November 2013.

Having heard the claimant’s evidence, the respondent requested an adjournment in order to allow the new management team to investigate the matter and to bring a number of witnesses. However, given that the existing management was in situ since October 2014, the Tribunal felt that the respondent had ample time to deal with this prior to the hearing. Furthermore, the proposed witnesses related to matters which preceded the disciplinary hearing which, as indicated above, totally exonerated the claimant. Therefore, the Tribunal took the view that these witnesses were not relevant to the case that was before the Tribunal.

The Tribunal considered the post-hearing submissions.  Having considered all the evidence including submissions from both sides post-hearing, the Tribunal finds in favour of the claimant. There was a lack of procedures adhered to and a lack of relevant witnesses put forward by the respondent to deal with the claim. There appears to be a deficit in procedures on the respondent’s part. For these reasons the Tribunal awards compensation to the claimant.

In view of these circumstances and taking into consideration the six-week period where she was employed, the Tribunal, in allowing the claim under the Unfair Dismissals Acts 1977 to 2007, finding compensation to be the appropriate redress deems it just and equitable to award the claimant, under the said legislation, the sum of €42,364.00 (this amount being equivalent to sixty-eight weeks’ gross pay at €623.00 per week) less €2,114.00 which, in mitigation, was earned over a six-week period in mitigation of loss. Therefore, the Tribunal makes a total award to the claimant under the Unfair Dismissals Acts, 1977 to 2007, of €40,250.00.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)