EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD371/2014
CLAIM OF:
Antoinette (Toni) Hynes
- Claimant
against
Pat The Baker
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms B. Glynn
Members: Mr J. Goulding
Mr T. Gill
heard this claim at Longford on 31st March 2015 and 30th June 2015
Representation:
Claimant: Ms. Maria McDonald BL instructed by: Ms Cliadhna M. Sheridan, Cliadhna M. Sheridan Solicitor, Main Street,
Granard, Co. Longford
Respondent Mr Tiernan Doherty, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Claimant’s Case:
The claimant alleged that she was constructively dismissed by the respondent and therefore the onus was on the claimant to present her case first.
The respondent operates a bakery and delivery service. The claimant was employed as a driver from 19th May 2003 until she left on 11th December 2013 in circumstances where she felt she could no longer continue to work there due to the conduct of the respondent.
The claimant had a few issues down the years but her difficulties with one particular colleague really began in 2009, shortly after she got married. This colleague would refer to her as “the bitch” and would try to hit her with trolleys and deliberately slow down when he was working ahead of her so as to slow her progress.
The claimant lodged a formal complaint against this colleague but was not happy with the outcome of that complaint or how it was dealt with. Having lodged the complaint the claimant was subjected to disciplinary process in respect of the amount of returns she was responsible for but it was later found that she had no case to answer. The claimant subsequently lodged another complaint against her Manager. However due to the length of time taken to deal with this complaint the claimant felt she had no option but to resign.
The claimant was absent on sick leave from 25th Nov 2011 to 15th May 2012 and again from 9th July 2012 until she resigned.
On cross examination she stated she felt the respondent was “picking on her”. If she raised any issues, which she had in the past, she was made out to be “a grass”. When mediation was recommended by the company Doctor it was held off by the respondent because of annual leave, she felt the company were not really that concerned to alleviate her concerns. She told the Tribunal that she had given the respondent three years to deal with her grievances and they were aware she was suffering medically from these issues. She had tried to resign in the past but the respondent would not accept it. In December 2013 she could take no more and had to terminate her employment.
She told the Tribunal that she was in receipt of Illness Benefit for 36 weeks after 11th December 2013 (the date of termination of employment) ie. Illness Benefit 11th December 2013 to 20th August 2014. She then began a FETAC Level 5 course in September 2014 but then changed to a full-time Pre-Nursing course. The claimant also took up a part-time job from October 2014.
Respondent’s Case:
The Human Resources Manager (FB) gave evidence.
He first had cause to write to the claimant in December 2010 regarding a disciplinary meeting in respect of the high levels of returns of company product from customers. A meeting was held and it was decided that no sanction would be issued against the claimant in this instance.
The claimant was absent from November 2011. She was requested and did attend the company Doctor on the 3rd January 2012. A Doctor’s report was received by the respondent on the 10th January 2012. The company Doctor who “advised that she remain off work until appropriate third party mediation has taken place, and a satisfactory resolution has been achieved. She currently perceives that her work-place in hostile.” FB wrote to the claimant the following day requesting her to meet him in alternative site to her work-place. They met and FB requested the claimant put her grievances in writing. On receipt of this letter containing the claimant’s concerns (that were read into the Tribunal’s record), FB informed her he would investigate the matter. FB told the Tribunal that her grievances were “fundamentally a personality clash”. Two colleagues were named – MM and FM.
FB spoke to MM, showed him a copy of the claimant’s grievance and requested a written reply (This was also read into the Tribunal’s record). FB also spoke to the Manager and Head of Transport.
FB told the Tribunal that the company Doctor recommended mediation for the claimant and he made the decision he would act as mediator between the claimant and MM. The claimant did not want to sit down with him and MM and told him so at a meeting in March 2012. The claimant wanted to go down a more formal route.
The claimant returned to work and was rostered on a route with a different colleague (GS). No issues seemed to arise during this time. On the 15th June 2012 FB issued the findings of his investigation into the claimant’s concerns. In conclusion he found no bullying against the claimant had taken place. However, he had uncovered concerns regarding communication between the claimant and MM and planned to address the issue with coaching and mediation between the parties.
On the 2nd July 2012 the claimant’s solicitor wrote to the respondent stating the claimant’s dissatisfaction with the outcome of his investigation and informed them the claimant had instructed them, her solicitor, to refer the matter to the Labour Relations Commission. A request was also made for a copy of the respondent’s anti-bullying and grievance policies and the question was asked if the claimant could appeal FB’s decision.
As a relief driver the claimant’s route was then changed to a five-day run to five different locations. On the 12th July 2012 the claimant wrote to FB stating her dissatisfaction relating to the shift allocated to her. She also submitted a letter of resignation. FB replied to her advising her the respondent was not accepting her resignation in circumstances were she had made it known as was appealing a decision in relation to previous grievances she had submitted. She was asked to reconsider her decision to resign. EB, the Head of Sales and marketing, also wrote to her to arrange her appeal hearing. At this point EB took over the claimant’s case.
FB told the Tribunal he again had contact with the claimant in January 2013 concerning an appointment she was to attend with the company Doctor. When asked why mediation had taken so long to be scheduled he replied that it was due to unavailability because of annual leave and therefore could not take place until August at least. The claimant then resigned in December 2013.
On cross examination FB stated he first became aware of the claimant’s work related grievances in 2011. When put to him he said that he took the issue of bullying as a very serious issue and if found it would be dealt with accordingly. He told the Tribunal that he felt he had carried out a full and fair investigation into the claimant’s grievances. When put to him if he thought it appropriate that MM, whom the claimant claimed bullied her, attended at the investigation meeting he held with FM, the second person claimant complained of bullying her, he replied that he did not see “anything wrong with it”, MM was FM’s boss.
When asked why the claimant had not received the promised refund of travel expenses she incurred when travelling to the company Doctor he replied that he had requested the receipts from her and would arrange payment if she submitted these receipts. When asked why it had taken the respondent so long to forward the claimant her P45 and holiday monies owed he replied that this was not in his remit but was poor administration of the respondent’s part.
EB, Head of Sales and Marketing with responsibility for the respondent’s eight depots and eight Sales Managers gave evidence. EB was the appeals officer in the claimant’s matter.
He wrote to the claimant on the 29th August 2012 to arrange a meeting with the claimant to assist in resolving her issues and facilitate her return to work. Following difficulties with proposed dates the claimant met EB on the 19th September 2012. (The minutes of this meeting were read into the Tribunal’s record). EB told the claimant that he would investigate the matter and revert back to her.
The claimant’s solicitor wrote to EB on 28th September 2012 regarding the claimant’s perception regarding their first meeting. EB wrote to the claimant on the 1st October 2012 stating his investigations were ongoing, hoped to conclude it within ten days and would then correspond with her. A second appeal hearing was held on the 10th October 2012. The claimant attended with her employee representative as before – GS. The claimant became quite upset at the meeting and left.
EB told the tribunal he then had meeting with MM, FM, GS and three other colleagues of the claimant. On the 24th October 2012 he wrote to the claimant with the outcome of his investigation. He concluded he found no evidence of victimisation or bullying towards the claimant. He asked the claimant to reconsider her decision of resigning. The claimant replied in writing that she had retracted her resignation at an earlier date and stated she was unhappy his conclusion.
On cross-examination he said that he felt he had carried out a full and fair investigation. He felt the respondent had acted very fairly with claimant in past transfer requests.
Determination:
This matter came before the Tribunal by way of a claim for constructive dismissal. The burden, which is a significant one, is on the claimant to satisfy the Tribunal that it was reasonable for her to terminate her own employment due to a significant breach by the respondent of the claimant’s contract of employment or because of the nature and extent of the respondent’s conduct and the circumstances in which the claimant was expected to work gave her no alternative but to leave.
Having considered the totality of the sworn evidence heard and the submissions submitted by both parties on the two days of this hearing, the Tribunal concludes that the claimant has met the burden of proof in order to establish that she was constructively dismissed.
Having taken the mitigation of the claimant’s loss of earnings and the agreed figure of the claimant’s losses between both parties, the Tribunal awards the claimant the sum of €10,346.40 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)