EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Debbie Murphy UD1569/2013
- Claimant 1
Anita Ryan UD1570/2013
- Claimant 2
Evelyn Ryan UD1571/2013
- Claimant 3
Against
Horan Eco Services Limited
- Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. P. McGrath BL
Members: Mr. C. Lucey
Mr. J. Maher
heard this claim at Dublin on 15th January 2015
Representation:
Claimant: Patrick V. Boland & Son, Solicitors, Main Street, Newbridge, Co. Wicklow
Respondent: John Barry, Management Support Services Ltd., The Courtyard, Hill Street,
Dublin 1
The determination of the Tribunal was as follows:
Background:
The respondent company provides contract cleaning services for its clients. The three named claimants were employed as cleaners in a school working 15 hours a week each. These hours were reduced over time.
The three claimants and the Managing Director / General Manager of the respondent company gave sworn evidence in this matter.
This is a case of constructive dismissal in respect of all three claimants.
Determination:
The Tribunal has carefully considered the evidence adduced in the course of this hearing. There are three claimants AR, ER and DM and it was agreed by the parties that AR would give evidence of the substantive issues as the same facts pertained in relation to all three claimants.
ER and DM were sworn in to confirm the evidence of AR and the respondent’s representative availed of the opportunity to cross-examine in relation to any matters which were deemed to be of concern to the respondent.
The case before the Tribunal is one of constructive dismissal and accordingly the burden rested with the claimants that they had acted reasonably in tendering their resignation or that the terms of their contracts of employment had been breached in such a manner that their resignations were reasonable and / or inevitable in all the circumstances.
The claimants were all engaged by the respondent which provided contract cleaning services to schools and other facilities in the Leinster area. The three claimants had been assigned to a National school in Newbridge where, alongside a fourth woman, they each put in a 15-hour week (i.e 60 hours in total).
The claimants’ hours were reduced and this resulted in the claimants having to rotate certain tasks which would previously have been done on an almost daily basis.
It is common case that there was pressure on in terms of delivering the standards expected. Classroom teachers expected their floors and stairs to be cleaned and buffed daily when in view of the time allotted only allowed this to happen every other day.
It is common case to hear the General Manager of the respondent company was applying pressure on the claimants to try and get the work done in the time allocated. The Tribunal generally believes that the pressure was not being applied unkindly and that when the claimants were being asked to re-double their efforts and try and get everything done they were not being given any warning of any sanctions which would be imposed on them if certain criteria was not met.
The Tribunal accepts the evidence of the claimants that they were doing the best they could in reduced hours and where stock issues arose from time to time.
The meeting on the 26th August 2013 was not formal and was not intended as a warning, it was quite simply a call to put the shoulder to the wheel.
The respondent’s General Manager was contacted on a date unknown but presumably before the 15th October 2013 by the school Principal who indicated a dissatisfaction with the work being done by the three claimants and an immediate request to remove them from the workplace.
The General Manager, it is accepted, had no alternative other than to acquiesce to this request and by telephone call made on the 15th October 2013 the three claimants were told not to return to their workplace and crucially were told that they were to be suspended without pay.
The Tribunal cannot deny the optics of how a suspension without pay has to look. The respondent’s own handbook does not allow for such a measure. The application of this sanction is unusually draconian and could only be justified in the most unusual of circumstances.
The circumstances here do not allow for such a measure to have been imposed. Whilst it is open to the client to request the removal of the three ladies even she does not seem to have given any substantial reasons other than a vague allegation of the unsatisfactory completion of certain tasks. It is worth noting that the client proposed the gathering of evidence of complaints after the removal of the claimants had been effected which task she set about completing over the next three weeks.
In the meantime the claimants felt isolated, jobless and out of pocket. A letter confirming their suspension followed up the verbal suspension. This letter does not set out the grounds implementing suspension nor does it set out the parameter of any complaint made. The claimants are simply notified that an investigation will be conducted and a disciplinary meeting will be arranged.
The claimants receive no further communication from their employer. The Tribunal does not agree with the contention that the onus was somehow on the claimants to be pro-active here and that they should have brought a grievance complaint against their employer at this time.
The respondent was totally at fault in this period of time and know or ought to have known that minimum wage part-time employees cannot be expected to bring a rear guard action of some sort. The claimants did go to Citizens Advice which was of some assistance but some three weeks later after their suspension they had instructed their solicitor to tender resignations on their behalf.
The Tribunal finds that the resignations issued in good faith and in response to an impossible situation created by the employer which included a breach of contract for the non-payment of wages. The claimants acted responsibly in all the circumstances. The subsequent effort by the respondent to proceed down the disciplinary process came too late and the claimants were well within their right to demand that they be re-instated on the payroll before engaging in the process.
The Tribunal makes awards as follows Unfair Dismissals Acts, 1977 to 2007:
DM - Claimant 1 - €4,000.00
AR - Claimant 2 - €4,000.00
ER – Claimant 3 - €4,000.00
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)