UD1555/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                      CASE NO.

Ann Murray                                                                            UD1555/2013

against the recommendation of the Rights Commissioner in the case of:

Patricia and Dermot Murphy t/a Dansar Care Limited

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. K. Buckley

Members:     Ms. M. Sweeney

Mr. J. Flavin

heard this appeal in Cork on 24 February 2015 and 13 May 2015

Representation:

_______________

Appellant(s):

Mr. Martin Corbett for Ms Colleen Minihane, SIPTU, Liberty Hall, Dublin 1

Respondent(s):

Mr. Brian Dolan, Peninsula Business Services (Ireland) Limited,

Unit 3, Block S, East Link Business Park, Dublin 3

The determination of the Tribunal was as follows:-

This case came to the Tribunal as an employee appeal against Rights Commissioner Recommendation r-124058-ud-13/RG under the Unfair Dismissals Acts, 1977 to 2007, in which it was found that it had not been established that the respondent had breached the claimant’s contract or that the appellant had acted reasonably in tendering her resignation in that she had not utilised the respondent’s internal grievance procedures but, rather, that she had declined to attend meetings to address her concerns.

The appeal was that the appellant’s working life had been made intolerable by management undermining her work on a daily basis and resisting all attempts to resolve matters and alienating line managers. In the later stages management sought to discipline the appellant as a final threat without following fair process. The appellant had no choice but to resign and was, therefore, claiming constructive dismissal.

The respondent’s position was that the Rights Commissioner Recommendation r-124058-ud-13/RG under the Unfair Dismissals Acts, 1977 to 2007, had been fair and accurate.

Giving sworn testimony at the Tribunal hearing, the appellant said that she had worked for the respondent (a South-West Cork nursing home) for just over three years. She was chef and manager of the kitchen. (There was also a part-time chef who worked for the two days per week when the appellant was not working.) There were also kitchen staff. The appellant did not do the rosters. Holiday request forms also had to be done.

The appellant said that her relationship with management had been good at first. She dealt with BRN who had recruited her. DM (of PM and DM who ran the business) dealt with the maintenance of the respondent’s building. The appellant identified things in the kitchen. Staff came in and ate the food. The respondent had to make food for residents as well as staff. Staff were not happy with the appellant about a change of regime towards residents. PM wrote a strong letter.

The appellant was accused of bullying by SU but the appellant felt that she had to change things. SU would not do what the appellant asked. The appellant said that she would ring PM. The appellant and SU were called to the office. After four weeks SU desisted.

In 2011 there was an inspection. The appellant was on holidays. According to the appellant reports of the relief chef were falsified. The appellant thought that the bullying issue arose after the inspection.

At this point in her testimony the appellant told the Tribunal of a manager (hereafter referred to as TRX) who was between her and the principals (PM and DM). The claimant felt that nothing happened after she referred matters to TRX who ultimately left a week after she did.

The claimant told the Tribunal that March/April 2011 saw an inspection. She was “stressed out” and said that she would not go on holidays. DM was shouting at her. She asked to see PM the next day. She told the Tribunal that she finally left the respondent because she was told by DM that he would not deal with her any more. DM had told her to deal with TRX. She had started relating everything to TRX but nothing happened. He would say that he had forgotten. Nothing ever happened.

The claimant arranged a May meeting with PM to tell her what was happening. TRX was forgetful and DM did not want to speak to the claimant. PM told the claimant to tell PM of any issues. TRX did not speak to the claimant because the claimant spoke to PM. The kitchen was the claimant’s responsibility. The inspector was coming back in two weeks. The claimant had gone to a doctor and was on anti-depressants.

At this point in the Tribunal hearing PM stated that 3 December 2010 had been the date of the inspection.

Resuming her testimony to the Tribunal, the claimant said that she had been supposed to deal with TRX who was her manager and that this was April 2011. She was called into a room in March. PM started shouting at her. Having met PM, the claimant sent PM a letter saying that she could not understand why she was shouted at. Correspondence was furnished to the Tribunal. The claimant told the respondent that she was very distressed and was going to a counsellor. PM said that the claimant should write everything down for the attention of PM. There was an allegation that the claimant was not doing what she should be doing. There was to be a formal disciplinary meeting but the claimant was not told what it would be about. The claimant went on sick leave.

The Tribunal was now told in reply to an inquiry that the nursing home had some fifty residents and about fifty-two staff (which number had since increased to about seventy-two). Each department was entitled to be represented at meetings. A meeting was scheduled for the day in May after the claimant returned.

The claimant had found out that money had been stolen from a particular staff member. TRX was spoken to. It was to be sorted out. The police should have been told when money was stolen. The claimant wanted to know who knew about this. PM said that she did know about it. The claimant asked TRX some “pointed” questions and said that the police should be called. TRX said that he and PM thought that it could be sorted. The claimant was told that there would be a minuted meeting. BRN (an abovementioned employee) said that she would leave if she were searched. Another employee (MRX) had had two hundred euro taken.

The claimant told the Tribunal that PM “decided to go on a personal rant” and said that she (PM) was having big problems in the kitchen. The claimant was told at the close of a meeting that she should account to the health quality body and then resign. The claimant told the Tribunal that an “onslaught” of letters then started. DM started writing. The claimant did not know why PM did not want to deal with her any more. The claimant did not have a chance to get a meeting representative. A letter was hand-delivered by DM to her home. The claimant seemed to understand that the respondent would hold a meeting in her absence if she were not there. The Tribunal could certainly see that the respondent had told the claimant that it regarded the claimant’s meeting attendance as essential. The respondent also sent her a list of complaints. However, under questioning by the Tribunal, the claimant did accept that the respondent would not have held the meeting without her.

The claimant told the Tribunal that she had not known why the respondent wanted a disciplinary meeting against her. She said that DM could have rung and asked if he could bring a letter to her home. She told the Tribunal that she had to get three days’ notice of the meeting. She felt that she “was being inundated with letters”. She was “completely bombarded”. TRX and PM would not listen to her. DM had taken over. She was out due to stress.

The disciplinary meeting never went ahead. It had been the claimant’s intention to refute the respondent’s investigation’s list of complaints against her but she was on sick leave for work-related stress. Her employment ended on 22 May 2012. She told the Tribunal that she was advised by her union to resign. Her then union representative did not contact the respondent.

It was put to the claimant by the Tribunal that she had worked for another employer (here described as ARNZ) on 20 May 2012.The claimant replied that she had not got paid for more than a few hours that day and that she and ARNZ had, on that day, just been looking to see if they liked each other. She did further work for ARNZ. The claimant’s stress related only to her employment with the respondent.

The claimant told the Tribunal that she had been harangued out of her job and that this case was not about money. She had two jobs from late June 2012. She had had part-time work since then. She would do two days per week here and three days per week there. The Tribunal sought that figures (regarding mitigation of loss” be prepared for the next hearing. The claimant’s representative undertook to do this. The case was adjourned to resume on 13 and 14 May 2015.

On 13 May 2015 the appellant’s representative said that the appellant had not finished and that she believed she had left out points. the respondent’s representative countered that the appellant had been just ending, was on to loss and had done work for another employer (ARNZ) before ending her employment with the respondent.

The appellant was resworn but the respondent’s representative contended that the appellant had been working elsewhere while certified sick from the respondent. The appellant spoke further about her dealings with PM and DM and the fact that she had been signed off sick. She objected to the fact that DM had gone to her home and that he had ripped off a door a note that she had put up. She had felt threatened. She also alleged that DM had said that a meeting would go ahead whether the appellant was there or not.

It was put that all of this had been opened at the previous Tribunal hearing. The appellant said that she had not got a chance to say what had happened on the last day. The respondent’s representative objected on the grounds that this hearing was at enormous cost to the respondent who had six witnesses present and that the case could last many days at great difficulty to the employer.

The Tribunal ruled that it would not allow the case to become protracted.

The appellant’s representative argued that there were questions about loss. More detailed documentation about loss was not forthcoming. The Tribunal was told that it could be sent but was not told why it was not present although months had passed since the previous hearing even if the appellant’s representative was not the first union official who had engaged with the appellant. Documentation was said to be “in process”.

The respondent’s representative argued that the appellant had got work while on sick leave, had shown the utmost bad faith and had not discharged the onus of proof needed to establish a claim for constructive dismissal. He did not ask to call his witnesses to give testimony.

The appellant’s representative contended that the appellant had not been treated with dignity and respect such that she had no option but to resign after working for PM and DM for a number of years. It was alleged that the appellant had had no option but to leave.

Determination:

The Tribunal stated that this was obviously a case that had been very distressing for both the Appellant and the Respondent.

The Tribunal is of the view that the onus of proof for a Claimant in a constructive dismissal claim is extremely high. The Claimant must establish that the behaviour of the employer is such that the Claimant has no option but to leave the employment.

The Tribunal in this instance is satisfied that the Appellant has not met that burden of proof. The Appellant has not established that it was reasonable for her to resign her position given the evidence presented to the Tribunal at the appeal hearing. The Appellant has not established that the Appellant’s behaviour was such that the Appellant had no option but to leave her employment.

On that basis the Tribunal unanimously upholds Rights Commissioner Recommendation r-124058-ud-13/RG under the Unfair Dismissals Acts, 1977 to 2007, and finds that the appeal against the Rights commissioners Recommendation fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)