EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
John Healy UD730/2012
against
Kerry County Council
(formally Killarney town Council)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr J. Hennessy
Mr F. Dorgan
heard this claim at Killarney on 26th February and 7th July 2015
Representation:
Claimant : Mr. Dan O'Connor, Terence F. Casey & Co, Solicitors,
99 College Street, Killarney, Co Kerry
Respondent : Ms Sarah Hearns, LGMA, 35/39 Ushers quay, Dublin 8
The determination of the Tribunal was as follows:
Claimant’s Case
The claimant was a qualified carpenter/joiner. He commenced employment with the Killarney Town Council in May 1978 and his initial tasks with his employer were multifunctional concentrating on maintenance duties, in particular carpentry work.. His status as an employee was that of a public servant. Within two years of his commencement he took on the role of relief town foreman for six months while the incumbent was sick and continued to perform the town foreman’s duties when he was absent on holidays or sick leave. The roles and responsibilities of that post were varied and demanding. The claimant returned to his original tasks when the permanent foreman returned to his duties.
In 2002 the claimant’s position changed again to that of temporary clerk of works. Within eighteen months he was removed from that role and being unhappy with this arrangement he took a case to the Labour Relations Commission. As a consequence of that action a new role of assistant town foreman was created. The claimant applied for and was appointed to that position in April 2003. In his capacity as the assistant town foreman the claimant was active and successful in the running of town’s affairs. He enjoyed a fruitful relationship with both statutory and voluntary bodies to the benefit of the town, its residents and visitors. In December 2009 the claimant became acting town foreman on the retirement of the incumbent and got the acting allowance. This was the bad winter and he took a leading role in dealing with the difficulties that arose. While acting in this role the claimant again positively contributed to the development and attractiveness of the town. While working in these roles the town won a number of prestigious awards.
In May 2011 the claimant along with a dozen other candidates applied for the advertised position of town foreman for Killarney Town Council. He had the requisite qualifications, skills, knowledge, and experience for this permanent post. Besides, he was performing that role in a competent and professional manner for the previous eighteen months and was confident and hopeful he would secure the position. A panel conducted the interviews for the position on 9 June 2011. The next morning the town engineer informed him that he had been unsuccessful in his application for the position but that he still had his old job. The claimant was “shell shocked”. Shortly afterwards, at the 10.00am tea break the successful candidate told the claimant that he was taking over the role of town foreman with immediate effect. The assistant town engineer conducted a meeting at around 2.30pm that afternoon and began by congratulating the successful candidate and commiserating with the claimant. The claimant had applied for the position in writing and had expected he would be informed of the result in writing.
The claimant was “devastated” and his self-esteem was undermined. He was badly treated. There was a lack of compassion or indeed comment from the respondent following what he regarded as his demotion. He went to the doctor the following Tuesday who certified him unfit for work. He met with the staff welfare officer and in the course of his discussions with her he detailed his complaints and grievances. However, he had no memory of actually invoking the formal grievance procedure.
When he met the town clerk and town engineer to discuss his unsuccessful application they told him that “their hands were tied”. In that conversation they acknowledged that he was an exemplary employee. By letter dated 19 July 2011, in response to his request, the claimant received his interview evaluation, detailing the marks he had achieved under the various interview criteria. To his utter amazement, under the criterion “knowledge of the role” the panel had judged him “not qualified” although he had been in the role for 18 months without any indication of not being up to the standard. The claimant told the Tribunal the whole thing drove him “completely and utterly around the bend”. The town foreman had, up until then, always been a craftsman.
.
From 16 June 2011 onwards the claimant submitted numerous medical certificates stating he was unfit for work and from late June depression was the reason given for this. He also came under the care of a consultant psychiatrist from 23 June 2011. The respondent was not made aware of the latter fact until after the termination of the employment. The claimant never had mental health issues prior to this. The respondent’s sick pay scheme expired after twelve weeks but was extended for a further two months until November 2011. He felt very vulnerable when his sick pay ended. He had a lot of expenses around this time. His wife had an ongoing serious illness involving hospital visits for treatment in Cork and Tralee, his daughter was attending college and his son did not have a job. He had a huge burden on his shoulders. He was so down and his self-esteem was so low he was not fit to return to work. On the advice of the welfare officer the claimant had a number of counselling sessions. The respondent paid for these.
As the end of February 2012 approached the claimant was in “domestic turmoil” and this was the deadline for an early and enhanced retirement package. He opted to retire on grounds of ill health supported by a medical certificate from his doctor dated 29 February 2012 stating that in his opinion the claimant was “permanently unfit for work due to chronic illness and depression”. He had retired on health grounds under duress. The respondent’s behaviour had triggered the whole situation. His application to retire was made under duress as he felt trapped between “the devil and the deep blue sea”. He had worked for the respondent for 33 years.
Respondent’s Case
The council’s only witness was an official from its human resource department who is based in Tralee. His evidence was that the HR section received the claimant’s medical certificates and that where an employee is suffering from stress, anxiety or depression he is referred to the welfare officer. The next interaction the witness had with the claimant was about his exit package. In cross-examination the witness accepted that under the public service moratorium in place at the time sanction was required from the relevant Government Department to appoint somebody to the role of town foreman and that the requisite sanction had not been obtained by the respondent. This witness who had very little involvement in the claimant’s case accepted that his retirement from the respondent was neither normal nor typical.
Determination
The claimant had over 33 years’ service with the respondent. Over the years he had acted as a relief town foreman, an assistant town foreman and for the eighteen months immediately preceding the events herein he had been the acting town foreman. There had been no complaints about his work and the evidence was that the town had done well under his stewardship, winning awards, accolades and the holding of competition(s) in the town/area.
When the claimant did not succeed in securing the position of town foreman he was devastated. While many employees who fail to secure an available job promotion are disappointed, this is not something for which an employer can be faulted. In this case however, it seems to the Tribunal that the procedures adopted by the respondent in and about the appointment to the position of town foreman and its behaviour in the immediate aftermath were not without fault. The manner in which the results of the interviews were communicated to the staff including the claimant was unprofessional and demonstrated a lack of sensitivity which greatly affected the claimant. When the claimant later discussed his unsuccessful application for the position with the town clerk and town engineer they told him their “hands were tied”. This comment may be perfectly innocent or indeed otherwise but neither of these witnesses was available to give evidence or to explain the comment to the Tribunal. When the claimant obtained his interview evaluation, he discovered that the panel had decided he was “not qualified” for the position. The claimant could not understand this as he had been acting town foreman for the previous eighteen months and all previous town foremen, for as long as the claimant could remember, had been craftsmen, as he was. It is not fully clear to the Tribunal whether the successful candidate was in fact a craftsman or the better candidate for the position. It is satisfied that these issues contributed to the claimant’s upset mental state. The Tribunal did not have the advantage of having these issues explored with witnesses on behalf of the respondent.
The Tribunal is satisfied that these factors combined with the resulting financial difficulties he faced helped to aggravate the claimant’s mental health difficulties which ultimately led to his leaving the employment taking an early retirement package at an earlier stage, than he otherwise would have done, with resulting financial disadvantage to him. The Tribunal finds that being forced into a position of resigning, albeit with a package, amounts to a constructive dismissal.
In light of the claimant’s upset mental state his failure to formally invoke the grievance procedure is not fatal in this case. In any event he made his complaints known through the welfare officer and he also met with the town clerk and town engineer. There was no evidence that those complaints were in any way addressed or even heeded by the respondent.
The respondent’s failure to obtain the sanction required under the public policy moratorium in place at the time, in the absence of any explanation from the respondent, lends some support to the conclusion that in the circumstances appertaining at the time, it was reasonable for the claimant to leave the employment.
For the above reasons the Tribunal finds that the claimant’s resignation amounted to a constructive a dismissal and that the dismissal was unfair. Accordingly, the claim under the Unfair Dismissals Acts 1977 to 2007 succeeds.
The medical certificate dated 29 February 2012 stated that the claimant was “permanently unfit for work due to chronic illness and depression”. The Tribunal considered the possibility that once he had left the employment the claimant’s mental condition might improve. The Tribunal notes the report of the consultant psychiatrist dated 10 January, 2012 outlines some improvement. In the absence of medical evidence of fitness for work the Tribunal cannot award compensation. However, under an amending section inserted by the 1993 Amendment Act, the Tribunal can award up to 4 weeks compensation in such circumstances. Accordingly, the Tribunal awards the claimant € 5,184.60 under section 7 (1) (c) (ii) of the Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)