EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UD1695/2013
Jacqueline Ussher
- claimant
Against
Tender Years Limited
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B L
Members: Mr D. Moore
Mr C. Ryan
heard this claim at Dublin on 8th January 2015 and 31st March 2015
Representation:
Claimant: Mr. Arthur Denneny, C Grogan & Company, Solicitors,
Main Street, Clane, Co Kildare
Respondent: R. Bracken & Co., Solicitor Prosperous Road, Clane, Co. Kildare
The determination of the Tribunal was as follows:-
Respondent’s Case
The respondent company a child care facility employed the claimant in February 2010. Company director JH gave evidence to the Tribunal. The claimant was rostered to work 8.30am to 5.30pm during the winter months and 8.15am to 5.15pm during the summer months. The times were agreed with the claimant and facilitated her getting the bus to and from work. During the winter months the claimant was permitted to leave at 5.25pm to get the bus home. A temporary shift change of 8am to 5pm to cover sick leave was arranged with the claimant. The claimant was issued several warnings over the course of her employment. On the 24 September 2013 the witness observed the claimant picking up an eighteen month old baby and swing the baby in a potentially dangerous manner. She spoke with the claimant advising against swing a child by the arms. On the same day she observed similar actions by the claimant and invited her to her office. That day the witness had prepared the claimant’s P45. The claimant initially refused to meet JH and was behaving in an aggressive manner. That day the claimant was dismissed with two weeks’ notice. The witness gave the claimant a cheque for money due.
A number of allegations made by the claimant against the witness were all denied. An allegation of personal comments regarding the claimant’s diet was denied. The facility was considered a teaching environment and any spelling or grammatical errors were always corrected. The witness advised the claimant to quit smoking in the same way she would advise any friend or colleague. All employees had the same duties including some cleaning duties. The witness explained that the playground was tree lined and she regularly asked employees to clear leaves preventing drains getting blocked. An incident on the 13 November 2012 about €50 going missing from the claimant’s purse was investigated. During the investigation the claimant stated that €50 was stolen and €20 put in place of the €50 note. As a result of the allegations of theft staff belongings were no longer stored in the private residence of the respondent.
The evidence was that the claimant was treated well and JH accepted that a family bereavement hit the claimant badly. Any late notification of sickness caused difficulty for the running of the facility and the claimant had failed to follow the agreed policy in relation to absence. On one occasion when the witness spoke to the claimant about the policy she became aggressive and stormed out of the room. The claimant’s mother and sister met the witness explaining that the claimant was behaving troublesome at home. In January 2013 the claimant informed her of her pregnancy and following a hospital visit learned of the difficulties with the pregnancy. She offered help and advice to the claimant at that difficult time.
Claimant’s Case
The claimant gave evidence. She worked for the respondent for a period of 3 years and 8 month caring for children. She had no qualifications and therefore was not assigned to a particular room but provided floating cover. 8 other staff members were employed including the claimant’s sister who continued in her employment.
The claimant was not given any written or verbal warnings. In August 2013 she was not given a warning, either verbal or written. There was no meeting to discuss the incident. A child threw his dinner on the floor because he did not like the peas in the shepherd’s pie. He was a fussy eater. She accepted that it was crèche policy to expect children to eat dinner but she had the permission of this child’s parents to give him a sandwich when he did not eat his dinner.
On 16th September 2013 the claimant had a meeting with JH. The claimant was on the rota to work from 8.30am to 5.30pm, despite the fact that she had always worked 8.25am to 5.25pm. She needed to finish at 5.25pm to catch the bus home at 5.30pm, otherwise she would have to hang around until the next bus at 6.30pm. JH told her that she was too busy to bother with her and the claimant felt that she did not care about her.
The claimant was called into the office on 20th September 2012 where JH handed her an envelope containing her letter of dismissal and her p.45. JH said that she had no choice but to let the claimant go because she could no longer look at her.
Determination
The Tribunal carefully considered the evidence adduced. It was common case that the claimant had difficulties in her personal life during the course of her employment. The respondent had some sympathy for her but she had a business to run that required a minimum level of staffing.
When the relationship between the claimant and the respondent broke down the respondent dismissed her without resort to any procedures. In the absence of procedures the Tribunal must find that the dismissal was unfair. The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds.
The behaviour of the claimant contributed to her dismissal. In all the circumstances the Tribunal, by a majority decision, award her the sum of €7,500.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)