EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
G4S Secure Solution (Ireland) Ltd UD1530/2014
- Appellant
against the recommendation of the Rights Commissioner in the case of:
Laura O'Connor
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr J. Goulding
Mr T. Brady
heard this appeal at Dublin on 22nd October 2015
and 11th January 2016
Representation:
Appellant(s) : Mr. Paul Rochford, IBEC, Confederation House,
84/86 Lower Baggot Street, Dublin 2
Respondent(s) : Mr. Hugh Hegarty, SIPTU, Misc Unit, Liberty Hall, Dublin 1
This case came before the Tribunal by way of an employer appeal of a Rights Commissioner recommendation under the Unfair Dismissals Acts, 1977 to 2007 reference r-141581-ud-13/RG.
The determination of the Tribunal was as follows:-
Background:
The respondent (employee) was employed as a Security Officer from the 29th June 2009 until she terminated her employment on the 22nd August 2013. She was paid a weekly gross wage of €483.75 and received a written contract of employment including the company’s grievance and disciplinary procedure.
The respondent lodged a claim for constructive dismissal to the Rights Commissioner who found in favour of the respondent and awarded her the sum of €12,000 under the Unfair Dismissals Acts, 1977 to 2007. The appellant appealed this decision to the Employment Appeals Tribunal.
As this was a case of constructive dismissal the employee (respondent) gave evidence first.
Respondent’s Case:
The respondent gave evidence. She explained her only place of employment with the appellant company was in the reception area of an office building in the I.F.S.C., Dublin, working Monday to Friday 9.00 am to 5.00 pm. She never worked night shifts.
She commenced maternity leave on the 9th April 2012 and advised the appellant her intended return to work date was the 8th October 2012. However, she availed of additional maternity leave until the 28th January 2013 and then took her remaining annual leave due to her. The respondent told the Tribunal that the appellant was fully aware her intended return to work date was the 21st February 2013.
On the morning of the 21st February 2013 she attended her workplace in the I.F.S.C. to find a colleague, who worked the night shift in the past, in her position. He told her he was now working there full time and she should contact the appellant’s Human Resources (HR) department. On contacting HR she spoke to the HR Generalist (CZ) and was advised to go home and they would be in touch. That afternoon she received a call from CZ and was requested to attend a meeting in Head Office the following Tuesday.
The following Tuesday she attended the meeting and was informed she was to be placed elsewhere as another Security Officer was working in her previous position. Later that week the respondent received a roster to work in a night shift in Priory Hall, North Dublin. She contacted CZ and informed her she could not do it the shift as she had a young baby. The respondent told the Tribunal that CZ told her she should work the shifts as she would be paid and would look into matter further. She contacted her union for advice. The respondent told the Tribunal how the whole situation had an effect of her health and she attended her doctor.
Correspondence crossed between the respondent’s Union Official (MDK) and HR. (This correspondence was opened to the Tribunal and read into the record.) During this time CZ left the appellant company and the matter was handed over to the new HR Generalist (EK). The appellant wanted to meet with HR to discuss the matter; they requested a medical certificate from her doctor to state she was fit to attend the meeting. However, no meetings ever took place. The respondent told the Tribunal that she had no alternative, as she had no income, but to tender her resignation and try secure alternative employment.
The respondent gave evidence of the affect the matter had on her health and the period of time she was in receipt of illness benefit, the mitigation of her loss of earnings, the job she secured in October 2014 and its lower rate of gross salary.
On cross examination she stated the appellant company had been fully aware of her return to work date and had not informed her prior to this that she would be positioned at another location to that of her previous four year employment. When put to her she agreed that her contract of employment stated she was a Security Officer (Dublin Area) and did not mention she would only be located in one in one location only.
Various emails and correspondence were put to the respondent in respect of other locations offered to her and lists of calls made to her that went unanswered. She replied that she would not have been uncontactable on ten occasions. When put to her that she did not state the reason why night duty was unsuitable to HR she replied that it was the same hours and days she had worked previously and they knew she had a young baby.
When asked by the Tribunal she stated that the only work rosters she had received from the appellant company was for the post in Priory Hall through the post.
The respondent’s Union Official (MDK) gave evidence. In late March 2013 the respondent contacted the union’s office explaining her situation. MDK was assigned to the case and met with the respondent on the 12th April 2013. MDK wrote to the CZ at the appellant’s HR department concerning the respondent returning to work to the same position she held before she commenced maternity leave. MDK also quoted an employer’s obligation under the Maternity Protection Act, 1994 - 2004.
On the 16th April 2013 CZ replied explaining why the respondent was not returning to her original position in the I.F.S.C. An incident had occurred on the clients premises while the respondent was on maternity leave. Security personnel were relocated and a new team assigned. The client had expressed to the appellant that they did not want any other security staff moved or replaced as they were now satisfied with the new team in place. CZ stated further that the respondent was employed as Security Officer to be located in a specific region; her position was not site specific. This was stated in her written contract of employment. CZ explained to the respondent that they “would endeavour to provide her with similar working hours in line with the IFSC roster pattern.”
On the 3rd May 2013 MDK wrote to EK, HR Generalist at the appellant company, regarding the respondent’s return to work and suggested a meeting should take place to discuss the matter. MDK told the Tribunal that she did not receive a reply from EK until the 24th June 2013.
MDK told the Tribunal that despite further correspondence and telephone calls between herself, EK and CZ (before she left the appellant’s employment) no meeting took place.
When put to her by the appellant’s representative, MDK said that it was not uncommon for an employer to request a fit to attend certificate from an employee’s doctor to attend a meeting when they, the employee, was absent of certified sick leave.
Appellant’s Case:
EK, the HR Generalist, gave evidence. She explained that she had taken over the respondent’s case when her predecessor, CZ, left the appellant’s employment in May 2013. She had not been involved in the initial dealings with the respondent but was fully aware of its background.
EK explained to the Tribunal that staff employed by the appellant company were retained for specific regions and not specific sites. Business needs dictated where their Officers were placed.
EK said that it had been “very unfortunate and an oversight” that the respondent had not been contacted by HR before she had returned to work and arrived at her previous location of the IFSC to be informed by a colleague that she was no longer placed there.
Following contact with her colleague, CZ, the respondent was offered work in other locations. In March 2013 the respondent was rostered to work the night shift in the Priory Hall, North Dublin but she refused. EK explained that this was not to be a permanent position for the respondent but it would have meant she would receive a weekly wage. At this time HR department was trying to locate a similar location to the position the respondent held in the I.F.S.C. EK explained that the offers of work made to the respondent at this time had no changes to the terms and conditions of her employment, status or salary. The HR department had tried to contact the respondent on numerous occasions to discuss her rosters but to no avail. (A list of these times and dates were given to the Tribunal).
EK explained that in correspondence to the respondent’s representative the appellant were willing to meet the respondent to discuss all issues if she submitted a “fit to attend” certificate from her doctor. She was on certified sick leave due to stress at the time. However, no certificate was submitted and therefore no meetings took place. The respondent submitted her resignation on the 23rd August 2013. EK told the Tribunal that she replied to the respondent stating the appellant company was not accepting her resignation as they wanted to discuss the matter and get her back to work.
On cross-examination EK again stated the appellant company had been trying to find similar duties to those she held on the site in the I.F.S.C.
Determination:
The Tribunal have carefully considered the sworn evidence adduced and submissions made over the two days of this hearing.
This matter came before the Tribunal by way of a claim for constructive dismissal. Accordingly the burden, which is a significant one was on the employee (respondent) to satisfy the Tribunal that it was reasonable for her to terminate her own employment due to a significant breach by the employer (appellant) of a fundamental term of the employee’s employment contract or because of the nature and extent of the employer’s conduct and the circumstances in which the employee was expected to work.
The Tribunal determine the Rights Commissioner was correct in her findings that “ ..the Employer has not caused a significant breach of the Claimant’s Contract of Employment. However I find that the Claimant has acted reasonable in tendering her resignation in August 2013 following continuous attempts by both the Claimant and SIPTU to implement either Section 26 Section 27 of the Maternity Protection Act, 1994 – 2004.”
Accordingly, the Tribunal uphold the Rights Commissioners recommendation and awards the sum of €12,000 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)