EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD403/2015
CLAIM(S) OF:
Douglas Doyle
– claimant
Against
The Board of Management Queen of Angels Primary School
– respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Ryan
Members: Mr J. O'Neill
Mr P. Trehy
heard this claim at Dublin on 7th April 2016 and 19th May 2016
Representation:
_______________
Claimant(s): In person
Respondent(s): Ms Catherine Kelly Mason Hayes & Curran, Solicitors South Bank House, Barrow Street, Dublin 4
The determination of the Tribunal was as follows:-
Dismissal was in dispute in this case and accordingly the claimant went into evidence first.
Summary of Claimant’s Case:
The claimant gave evidence that he was initially employed by the respondent as a school caretaker in 2011. His first contract was for 30 hours per week at a rate of €12.50 per hour. According to the claimant the school was in poor repair and he set about improving it. The school won awards in 2012 and 2013 as a result of this improvement. The Irish President attended a ceremony at the school and the claimant and another were singled out for praise.
His contract for the 1st September 2013 to the 6th January 2014 reduced his working hours to 20 hours per week. He was unhappy about this after all the work he had done, but accepted it. He was offered to make up the 10 hours by also performing cleaning duties, but he refused this as he had been hired as a caretaker. He did not like cleaning and preferred maintenance.
In 2014 a community scheme employee was brought in to do the cleaning, however the claimant believed he was taking on some of the care taker’s tasks. At two meetings on 6th and 13th June 2014 it was explained that the auxiliary grant from the Department of Education and Skills was insufficient to cover the hours of the caretaker, cleaner and secretary. The claimant was informed that there were no hours for him over the summer. They asked him to take annual leave but he refused as his contract ran until 8th July 2014.
The claimant believed that he had been let go and so wrote to the Chairwoman to seek a redundancy payment. She met him on 20th June 2014 and confirmed that he would be reemployed the following academic year. He received a letter dated 27th August 2014 which asked him to attend a meeting on 16th September 2014 to outline his duties. The claimant was upset that he had not been reengaged from the start of the academic year. At the meeting he was told that due to the financial situation of the school his hours were to be cut from 20 hours to 15 hours and that the role would be caretaker/cleaner. The hours were spread out over Monday to Friday with 30 minutes from 7.30 to 8am to open the school and then in the evening from 3.30pm to 6pm. He also believed that his pay was to be reduced to €10 per hour, but this was rejected by the respondent. An unsigned contract was produced which the claimant denied had been produced at the meeting. A list of duties was produced. He was told to inform them of his acceptance by Friday 19th September 2014. He also contended that he was asked to submit a letter stating that he agreed to the changes but that he had refused to do this.
A further letter issued which gave the claimant a deadline until 1st October 2014 after which it would be assumed that the claimant was rejecting the offer. The claimant responded on 29th September stating that he wished to continue on his original contract or to be advised of redundancy. A letter of the 10th October 2014 noted the claimant’s refusal but disputed that a redundancy situation arose as someone would have to replace him.
The claimant sought other work and succeeded in gaining a caretaker position in another school pending a reference from his previous employment. The Chairwoman sent a statement of his employment which confirmed that he had worked at the school and the dates that he had worked there. On foot of this the offer of employment was rescinded. The claimant was upset that no reference was made to all the improvements that he had made to the school. This situation led him to submit his claim for unfair dismissal.
In cross-examination he agreed that he had written to the management of the community work placement scheme to complain that his hours were being taken by the scheme’s employee. The scheme then withdrew their worker. This meant the school had to hire a cleaner. The claimant argued that he had previously been employed over the summer but in 2014 the community scheme worker would be carrying out his duties while he was laid off. His restructured hours meant he could not find other work. The claimant has since become self-employed.
Summary of Respondent’s Evidence:
The Treasurer gave evidence. The school’s population comes from a disadvantaged pocket in south county Dublin. It has the DEIS designation (Delivering Quality of Opportunity in Schools). At the end of the school year in 2014 the school had unpaid liabilities which could not be paid. The year end accounts in August 2014 showed a deficit of €24k. On 6th June 2014 he met with the three employees employed directly by the board; the cleaner, caretaker and secretary. The school finances were explained and each was told their hours would be cut by one hour per day. He met the claimant on 7th June 2014 and explained that his contract was not being renewed for the summer and that the school would be in touch at the end of the summer. He did not say the claimant’s contract was terminated. He requested that the claimant take his holidays in advance of his contract’s termination date of 8th July 2014.
The claimant was invited to a meeting on 16th September 2014. As the community scheme worker had been removed from the school the Board could not afford to hire a further cleaner. A contract was offered to the claimant of Cleaner/Janitor for 15 hours per week at his current rate of pay. He could not recall if the contract was given to the claimant at the meeting or posted later. He believed it was sent to the claimant and followed up by letter.
The School Principal gave evidence. Grants to the school were only to be spent on the designated purpose. Other schools could raise significant amounts through voluntary contributions and fundraising but at the respondent’s school many parents of pupils were on low wages or in receipt of social welfare payments. The most ever raised through voluntary contributions was €1,700, but this fell to €1,100 in the following years. She did her best to rent out the school to raise extra funds.
She asked the Treasurer to explain the financial situation to the staff. The other employees understood. The claimant seemed to believe he was leaving as he told the teachers this and they started a collection for him. She explained to the teachers that this was not the case.
The community scheme worker was removed during the summer due to the claimant’s letter. He was mainly placed there to work in the garden which an SNA had established for special needs students. He also had special needs and enjoyed gardening. He was asked to perform some cleaning to make up the rest of his hours. This was explained to the management of the scheme, but they were concerned that the extra cleaning, though not against the rules, would be viewed badly.
She believed that the contract had been handed to the claimant at the meeting and had a recollection of him holding it. The rate of €12.50 was detailed in it. Opening the school took 15 minutes. Mopping was only if required and otherwise the cleaners undertook this on Fridays. The claimant said he would work the contract under protest. The Principal asked him several times what he meant by this and he said ‘conditionally’. She asked for an explanation of this and when an answer was not forthcoming she asked him to write to the Board to explain what he meant prior to commencing the following week. She did not mean by this that the claimant could not resume without writing a letter.
There were always two cleaners. One left and the community scheme worker carried out her duties. He did not carry out the claimant’s duties over the summer. The Parents’ Association undertook the grass cutting to save the school money. Currently the cleaner’s son does two hours per day. They took on a caretaker on a needs basis after the claimant left. This person works for another school and does some hours for the respondent when necessary. If he is not available the witness or the assistant principal opens the school. They did not offer him the claimant’s contract as they did not know if they could honour the wages or if the claimant would return.
The then Chairman of the Board gave evidence. The claimant called to her house on 20th June 2014 and she assured him that he would be returning after the summer. A week later he said he was updating his CV and asked if he could use her name as a referee. She advised him that the Principal was best placed to do this as he reported to her. She could only state that he worked at the school. He made two further requests for a reference. One was for the school in Ballinteer which she faxed at very short notice at the request of the claimant’s wife. The Principal of that school phoned her. He told her that he was withdrawing the job offer to the claimant as he had discovered that the claimant was untruthful about how his employment with the respondent had ended. It was not her understanding that the reference contributed to the withdrawal of the offer.
She could not recall why she did not clarify the rate of pay when responding to the claimant’s letter of 29th September. It was never proposed to cut the claimant’s rate of pay.
Determination:
The claimant was initially employed by the respondent as a school caretaker in 2011. His first contract was for 30 hours per week at a rate of €12.50 per hour.
His contract for the period 1st September 2013 to the 6th January 2014 reduced his working hours to 20 hours per week. He was unhappy about this after all the work he had done, but accepted it. He was offered to make up the 10 hours by also performing cleaning duties, but he refused this as he had been hired as a caretaker.
In 2014 a community scheme employee was brought in to do the cleaning, however the claimant believed he was taking on some of the care taker’s tasks. The claimant was informed that there were no hours for him over the summer. They asked him to take annual leave but he refused as his contract ran until 8th July 2014.
The claimant believed that he had been let go and so wrote to the Chairwoman to seek a redundancy payment. She met him on 20th June 2014 and confirmed that he would be reemployed the following academic year. At a meeting on 16th September 2014 the claimant’s duties were outlined. He was also told that due to the financial situation of the school his hours were to be cut from 20 hours to 15 hours and that the role would be caretaker/cleaner. He also believed that his pay was to be reduced to €10 per hour, but this was rejected by the respondent. An unsigned contract was produced to the Tribunal which the claimant denied had been produced at the meeting on the 16th September.
The respondent denied that the claimant was told that his rate of pay would be cut. However the Tribunal is critical of the fact that the chairman of the board did not clarify, that the claimant’s rate of pay had not been cut, when replying to the claimant’s letter of the 29th September.
The Tribunal accepts the claimant’s evidence that he had not received the unsigned contract of employment, which was produced at the hearing.
The Tribunal carefully considered all the evidence and determines that the claimant was unfairly dismissed. Taking all the circumstances into consideration the Tribunal further determines that compensation is the most appropriate remedy and awards the claimant €1,000, cognisant of the fact that the claimant became self-employed after the dismissal, and was not actively seeking work.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)