UD762/2013

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD762/2013

CLAIM(S) OF:                                                        

Lidia Stoliarczuk                   - claimant

against

Cullen Cleaning          - respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. S. McNally

Members:     Mr. D. Hegarty

                     Mr. O. Wills

heard this case in Cork on 9 September 2014 and 11 March 2015

Representation:

Claimant(s):

Mr. David Gaffney, Sweeney Solicitors, Marlboro House, Marlboro Street, Cork

Respondent(s):

Mr. Ian McGowan Smyth, HR Ireland, c/o Old Road, Alexanderaide, Navan, Co Meath

The determination of the Tribunal was as follows:-

This case came to the Tribunal as an unfair dismissal claim on behalf of a cleaning supervisor whose employment with the respondent began (as a cleaner) in September 2005 and ended at the end of April 2013. It was alleged that she had been victimised after she testified at a Tribunal case brought by a colleague against the respondent.

The respondent’s position was that the claimant had not been dismissed but, rather, had resigned. The claimant had requested to revert from assistant supervisor to general cleaner but the respondent could only facilitate this by moving the claimant from the centre of Cork to Wilton. The claimant became abusive and resigned.

Giving sworn testimony through a Tribunal appointed Polish-English interpreter, the claimant said that her wages had been reduced. She herself had previously translated for a colleague. The respondent had said that the pay reduction was an error. The claimant was called to a meeting, separated from her colleague and told that she was a bad influence who got others to send e-mails. The claimant was told to start at Wilton the next day as a general cleaner. This would involve a demotion to a grade that the claimant had had in the past, transport costs and the impossibility of getting a bus early enough to be on time for work. After an absence from work the claimant resigned and claimed constructive dismissal.

In cross-examination it was put to the claimant that the respondent had rectified an erroneous reduction in her pay, that she had used foul language to the respondent and that she had not contacted the respondent during her absence rather than deciding to resign. The claimant did not deny using strong language but said that it had been a stressful situation.

Questioned by the Tribunal, the claimant insisted in the strongest terms that she had sworn on the Tribunal bible and that she had never sought to revert from supervisor to general cleaner.

At the resumed hearing on the 11 March 2015 LC the HR director of the respondent company gave evidence of running a family business with much focus on the work force and providing training for all employees. The Patrick’s Street site manager had informed her of grievances raised by employees regarding the distribution of work and the rotation of cleaning duties. The claimant was second supervisor at the site filling in for the main supervisor from time to time and assisting with translating for other employees. In April 2013 the HR manager engaged the services of an independent HR consultant to investigate the grievances raised. Staff were interviewed on the 23 April 2013 by the consultant and the claimant attended meetings as a translator only. The atmosphere at the site was described as poor which in turn was having an effect on the customer. The HR consultant reported back that the claimant was speaking for staff interviewed not just translating. Following on from that the witness and the site manager invited the claimant to a meeting on the 25 April 2013. As the claimant had made many requests to step down to a general cleaner role the witness believed that informing her that this was now possible believed she was delivering good news to the claimant on that day. The witness informed the claimant she should report to the Wilton site the following day however due to the negative reaction from the claimant she suggested she take the following day off to consider the position. Later that day she received an abusive telephone call from the claimant. The claimant asked that she not be contacted again only through her solicitor. She was given no opportunity to resolve the issue with the claimant after that date.

In cross-examination the witness accepted that the respondent had sent a letter to the incorrect address of the claimant following her receipt of her resignation email which had included the correct address. The HR director confirmed to the Tribunal that no alternatives were put to the claimant on the 25 April. She also confirmed that no written request for a step down role existed and this was not a requirement for anyone wishing to step down.

The area manager (TC) gave evidence of having a good working relationship with the claimant. She described the claimant as one who took any negative feedback about her work personally. Due to problems at the Patrick’s Street site she spent a lot of time there in comparison to other sites. The claimant had a problem with the large sections she had responsibility for and had requested a general cleaning role. The claimant had provided cover in a supervisory role at the request of TC.

At the meeting of the 25 April she believed the claimant would accept the offer of general cleaning duties at the Wilton site. It was viewed as a solution with two fold benefits. She was shocked by the claimant’s reaction and her abusive behaviour later that day on the telephone.

In cross-examination TC agreed that the change to the claimant’s site location was as a result of the independent HR report. The change to the claimant’s role was communicated as a decision rather than a proposal. TC had no further contact with the claimant in circumstances where she was asked not to communicate with her directly.

The independent HR consultant gave evidence of carrying out an informal investigation at the site in He did not produce a written report of the findings. He explained he met three employees in April 2013. The claimant accompanied one employee to assist with translation only. The claimant spoke for the employee who herself had remained silent. He reported this to LC verbally. He described the grievances raised as minor recommending support for the supervisor at the site. The witness was not involved in the decision to relocate the claimant.

Determination

The claim under the Unfair Dismissals Acts, 1977 to 2007 was one of constructive dismissal; accordingly it fell to the claimant to make her case.

Having heard substantive evidence from the parties the Tribunal noted that there was conflicting evidence in respect to claimant requesting to step down from her role as supervisor and it was unusual that a written request for a step down by an employee did not exist. The Tribunal were satisfied from the evidence heard that there had been a unilateral decision by the respondent to relocate the claimant without notice or meaningful consultation, that no other option had been considered by the respondent other than relocation and was presented to the claimant as a decision rather than a proposal.

The Tribunal in making an award finds that it must take into account the actions of the claimant as a contributory factor and accordingly the Tribunal awards the sum of €9,500.00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)