EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Mary Donnelly UD1113/2013
MN575/2013 -claimant WT190/2013
against
St Marys Community Adult Education Group Limited
-respondent
Under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS 1973 TO 2005
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Clancy
Members: Mr T. Gill
Ms S. Kelly
heard this claim at Limerick on 4th February 2015, 28th April and 29th April 2015.
Representation:
Claimant: In person
Respondent: Dan O’Gorman, O’Gorman Solicitors, Munster House,
75a O'Connell Street, Limerick
Respondent’s case:
The respondent runs a Centre whose primary focus is on providing education to members of the community.
The Tribunal heard evidence from witness (HF) who worked as a secretary for the respondent. In 2002 she and others decided to form an adult education group. The board of management is voluntary. She herself was a voluntary worker.
The respondent employed the claimant as a CE supervisor in 2008. At some point in time they found that the CE work was not being done so the claimant was asked to concentrate on the CE work.
The witness explained that the claimant pursued a bullying and harassment claim against her. She explained to the Tribunal that all they were trying to do was to get the claimant to do the work she was employed to do. The witness felt uneasy going into the workplace because of undertones. She was being “bombarded” by e-mails from someone. The company stamp had gone missing. They found that the claimant’s computer that was set aside for her work had been used to do work that was unattached to the respondent’s work. She wrote to the claimant on behalf of the respondent. The letter invited the claimant to a disciplinary enquiry meeting and it outlined the concerns to the claimant.
The board of management were advised to take a step back. Eventually the board of management agreed to have a meeting about the matter. The board were to meet to discuss the matter and to decide how they were to proceed.
The witness explained the events that occurred just prior to the board meeting. She explained that there was an adult education class in progress in the room before the meeting. The person conducting the class (EM) was a full time VEC teacher. The class finished and EM left. The board proceeded to their meeting in the classroom that had been vacated. They were just about to commence the meeting when EM returned to the room. EM went to a basket that was in the room and lifted an A4 sheet of paper that was in the basket. A recording device which was turned on was visible in the basket.
The device was taken to the Gardai and was returned to the respondent. EM initially would not say who she thought had left the device there but she did later confirm that she was of the opinion that it was the claimant who had left the recording device there.
The initial disciplinary enquiry was set aside. On 4th April 2013 the respondent wrote to the claimant inviting her to a disciplinary enquiry on 10th April 2013 concerning their concerns about the flower basket and a recording device and suspended the claimant with pay that day pending the disciplinary enquiry. Statements were taken from EM and BT (Director) and were furnished to the claimant’s solicitor in advance of the disciplinary enquiry. The claimant’s solicitor wrote to the respondent indicating that LM, one of the claimant’s witnesses would be in a position to exonerate the claimant but was medically unfit to attend the disciplinary enquiry. The solicitor enclosed a statement from JR. The witness felt that LM was being used and was a very vulnerable individual. The Board decided not to interview LM because of his vulnerability.
At the disciplinary enquiry on 10th April 2013 the Board took the decision to dismiss the claimant. The witness had known EM for a very long time and had never questioned her integrity.
The respondent chose an independent person L to conduct the appeal hearing and there was no objection from the claimant’s solicitor. Both parties had agreed to be bound by his decision. The claimant’s appeal to her dismissal was upheld.
BT a voluntary member and Director of the Centre recollected the interruption by EM at the commencement of the Board meeting on 26th March 2013. He remembered EM retrieving a basket which had been behind computers in the room and checking it and bringing it to the table where the Board were having their meeting. An A4 sheet of paper was removed and a recording device was revealed. The witness thought he had taken the device out of the basket but did not know if it had been turned on. He was quite shocked that such a device was in the basket. He could see EM was visibly shaking and very upset. She was of the view that the device had been placed in the basket during one of her classes. The trust the students had placed in her had been compromised. The witness assumed that the device had been part of an attempt to illicit information from the Board meeting.
TR is chairperson of the Board and a voluntary member. Board meetings are held monthly. Statements that had been made about the Board members previously were brought to the Board meeting on 26th March 2013. Consent had never been given to record Board meetings. When EM brought the basket over to the table where the Board were having their meeting TR noticed the light was on the recording device. He suggested the device be taken to the Gardai. It was placed in an envelope. The Gardai held on to the device for several days. EM had heard her voice on the recording and identified the claimant’s voice on the device also. The claimant worked full time and was a key link between the Board and the Centre. The Board had placed huge trust and confidence in the claimant. On advice they decided to proceed with a disciplinary enquiry into the matter. He spoke to DH who said he did not know who was involved.
At the disciplinary enquiry the witness said that the claimant refused to engage.
The Board’s decision to dismiss the claimant was unanimous. The witness met the claimant in the Centre and handed her the letter of dismissal. The claimant said fine and handed back her keys to the Centre.
EM is an Outreach Guidance Counsellor employed by the VEC who commenced working in the Centre in around 2007/2008. She facilitates sessions in the Centre. The sessions are highly confidential and interactive. She also facilitates one to one sessions. Attendees come from disadvantaged areas in the community and are very vulnerable.
The witness had a good strong working relationship with the claimant. They confided in each other. They interacted and supported learners.
During the course of the session on 26th March 2013 held in the computer room, the claimant entered the room holding a basket high up close to her chest with both hands, in a deliberate and controlled way. The claimant is taller than the witness and the witness could not see into the basket. The witness’s sense was that the claimant walked in front of her. The claimant placed the basket in the area where there were decommissioned computers. The claimant then left the room without the basket. She progressed on with her session and about 5/10 mins later a second person entered the room and walked behind the witness. He had been holding an A4 sheet of paper and placed it in the area where the claimant had left the basket. He then left the room without the piece of paper. The witness did not want to mention this person’s name. About one hour later that person returned to the room to collect his jacket. The session concluded at approximately 4.20 pm. One learner remained and the witness had a one to one session with him. The Board were hovering outside the room when the witness left the Centre around 5 pm. Most Board meetings take place in the computer room. The witness was aware there was tension around new initiatives. The claimant was a visionary with great ideas. She saw the claimant going her way and the Board going a different way. She had observed things that concerned her. The witness was unaware a Board meeting had been scheduled for that evening.
As the witness was driving home she felt uneasy as something was not sitting well with her. She decided to return to the Centre. She interrupted the Board meeting which was taking place and proceeded to the area where the claimant had left a basket. She lifted an A4 sheet of paper which had been placed on top of the basket and saw a recording device in the basket. She brought the basket over to the Board members. There was a red light on the device indicating it was recording. Everyone was shocked. There was a digital display which recorded “1.43”. She believed the device had been switched on before it had been brought into the room earlier. The witness became very upset and emotional. Her gut feeling was that the claimant had placed the device in the basket. She did not make a statement until a few days later when she listened to the recording. She identified the claimant’s voice then.
The witness made a second statement. Having read a statement by LM she identified LM to be second person to enter the room that day. She believed LM to be a very vulnerable person who was implicated in this incident. LM had been very loyal to the claimant and the Centre. The Centre was his route back to education. LM has not returned to the Centre since the incident.
Claimant’s Case:
DH owned a recording device and brought it to the Centre on 26th March 2013. The device was of no value to him He was a volunteer tutor. He had brought in the recording device suggesting that it could be used for recording family history. He gave the device to LM for safe keeping. He had to leave the session early that day to go to a funeral.
MM had been a volunteer for several organisations over the years. After several years she became a director of the organisation but resigned in early February 2013. She had become unhappy at Board meetings she attended. In the latter part of 2012 the Board had become unhappy with the claimant’s work performance and was suggesting the claimant’s removal from the Centre. The claimant had approached her to sign a form in relation to funding for the Centre. If the Centre was successful in securing funding CE workers could have been provided with work. The Board rejected the application.
The claimant commenced employment on 1st December 2008 as CE supervisor. During the course of her interview for the position she was told she would be managing the Centre run by the respondent and mainly working on her own. Her role entailed working as a manager, CE supervisor, FETAC verification officer and some other duties also. She often worked her holidays and Saturdays. She supervised staff. She acted as fundraiser for the organisation and was involved in the financial aspects of running the Centre. The respondent operated a clocking in system.
Initially she shared a computer with an Accounts employee but as numbers grew she moved to a smaller room and worked on the computer which was located near the door. This allowed her a clear view of the doorway.
Everyone used her computer. She had been accused in the past of misusing the computer and proved the documents she was accused of generating had not been done by her.
In 2011 she raised grievances and a mediator was appointed and a report was generated. She lodged an appeal to this report on several occasions but none of her requests were acknowledged by the respondent.
On the afternoon of 26th March 2013 the claimant entered the kitchen to clean up after a flower arranging class. A small flower basket had been left behind. There was nowhere in the kitchen area to store the basket. She then proceeded with the basket in her hands to the main computer room where a class was being held. The door to this room was ajar. She excused herself on entering the room and crossed by EM’s side. One of the participants enquired if she had brought them Easter eggs. All participants then laughed. She placed the basket behind some disused computers. As her handbag had been stolen in the past she sometimes placed her handbag in this area for safe keeping each day. As she was leaving she told the class a joke. LM had entered the room immediately after her as he had been one of the class students and the claimant had placed him in that room on two more occasions that day.
The claimant left the room and returned to her own room. She finished her day’s work and returned home. The Centre is usually locked between 17.00 and 17.15 each day. She was unaware of any meeting being scheduled in the Centre that evening.
The claimant had attended Board meetings over a four year period and updated the Board on all events in the Centre. She had not been present at board meetings six months prior to her dismissal. She stated that 95% of Board meetings took place around 2.30 in the afternoons to accommodate HF who was working in another Centre. There was no entry in the diary or neither did she receive an email informing her of a Board meeting taking place that evening.
On one occasion she had suggested a €1m project which the claimant believed could create employment but the Board turned this proposal down. She was very disappointed and thought it to be a loss for the community.
The claimant attended meetings organised by an Adult Education Support Group. These meetings took place at 8 pm in the evenings. This Group believed much more work could be done in the area. People had the skillsets to take on more work in the Centre.
The first time she heard of a recording device being referred to was from one of the CE participants. She was told then she was being dismissed because she had put a recording device in a basket and covered it with a piece of paper. She never put a recording device in the basket she had placed in the computer room. She had no motive. She had problems with two of the Directors of the Board and this had been ongoing for approximately five years.
On 4th April 2013 she received a letter from the respondent informing her that she was being suspended from work pending a disciplinary enquiry. The respondent referred to an issue that could be deemed to undermine the mutual trust and confidence in the claimant.
The claimant, her sister and niece together with her legal team attended the disciplinary enquiry on 10th April 2013.Outside,the Adult Education Support Group had gathered. She was unaware that they were going to be there. LM had told her beforehand that DH had asked him to look after the recording device for him. LM had come forward and made a statement. The claimant was relieved as she had thought she had been set up. The legal advice given to her on that day was to say nothing. She believed EM had acted in a professional manner in reporting the matter and subsequently furnishing a statement. She believed EM acted on her gut feeling. On 12th April 2013 she was dismissed from her employment and offered a right of appeal. She appealed the decision to dismiss her. Several witnesses accompanied her to her appeal hearing. She participated fully at the appeal hearing. She felt her witnesses were vulnerable and not of a high calibre and that L who conducted the appeal hearing was too high brow. She felt the process was unfair. The decision to dismiss her from employment was upheld at the appeal hearing.
The claimant has not been successful in seeking alternative employment since the termination of her employment. She has been in receipt of social welfare payments. She registered with several employment agencies. She has been involved in voluntary work. She told the Tribunal that ten days holidays were owing to her.
Determination:
The Tribunal carefully considered the evidence adduced and oral submissions made by both parties during the course of this three day hearing. The Tribunal notes that there is a conflict of evidence between the parties. It is noted that the claimant joined a Support Group part of which concerned the alleged shortcomings of the respondent in its work in the Community. It is accepted that not one person witnessed the placing of a recording device in the basket in the computer room but on the balance of probability the Tribunal is satisfied that the device was placed there by the claimant.
The Tribunal (with one member dissenting) finds that the claimant was not unfairly dismissed from her employment. The claim under the Unfair Dismissals Acts, 1977 to 2007 fails. The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 also fails.
As the respondent did not dispute that the claimant was entitled to outstanding holiday pay, the Tribunal awards the claimant €1,545.00 being the equivalent of 10 days holidays under the Organisation of Working Time Act 1997.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)