EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD587/2015
WT93/2015
CLAIM OF:
Tina Williams
- claimant
Against
Treaty Hackney Cabs Limited
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr J. Hennessy
Mr D. McEvoy
heard this claim at Limerick on 27th May 2016.
Representation:
Claimant: Ms Helen Whately BL, instructed by Mr Sean Ormonde, Sean Ormonde & Co, Solicitors, Suite 19, The Atrium, Canada Street, Waterford
Respondent: Mr. Gerard Reidy, Wallace Reidy & Company, Solicitors, 24 Glentworth Street, Limerick
The determination of the Tribunal was as follows:-
At the outset of the hearing the claim under the Organisation of Working Time Act 1997 was withdrawn.
This being a case of constructive dismissal it fell to the claimant to present her evidence first.
Claimant’s Case:
The respondent is a family run hackney taxi business. The claimant was employed as a Base Operator. Her duties including answering the phones in the business. She commenced employment in 2002. She worked a 40 hour week Monday to Friday. Her uncle JW is owner of the business.
She was unhappy and encountered difficulties at work and in 2007 she left her employment. In 2008 JW encouraged her to return to the business. She resumed working in the business in 2008. She was not furnished with a contract of employment.
In 2011 she commenced working two twelve hour shifts at the weekends. She worked alongside J.
If she encountered issues with drivers or customers she left notes in the safe or under the office door. The office door was locked. GW was the Day Manager. In October/November 2014 CM told her that he was appointed Night Time Manager.
CM had suspicions that J was not carrying out her duties fairly in the office. CM asked the claimant to jot down a few things for him. The claimant noticed that J was not assigning customers to drivers in a fair manner and she made a note of this and passed it to CM. The claimant told CM that she did not want any animosity in the office and this note was just for his own benefit. After she furnished CM with the note J stopped talking to her. The claimant asked J if there was a problem and J informed her that JM and CM told her that she had been complaining about her. When she enquired from CM about the matter he told her it was none of his business.
The atmosphere became very tense and it was not a nice place to work. She was sitting in silence. CM told her she was better off to walk away. She did not look forward going to work. She began receiving calls from JM and CM telling her to give up and go home and walk away.
As she found it easier to communicate with GM she wrote a letter to him on 7th December 2014. In her letter she explained she was having difficulties with JM and CM. She was really stressed out and was made feel uncomfortable at work. She felt bullied and asked if he would have a word with both JM and CM. She slid this note under the office door. She did not receive an acknowledgement of this letter.
Nothing changed at work. Things were getting to her. On 21st December 2014 she wrote a letter to JM. She was unhappy with both his and CM’s treatment of her. She felt she was being spoken down to by him and CM. She wanted it to stop. She put this letter under the office door. Again she did not response to this letter. When she enquired from JM about the letter he denied receiving the letter.
In early January 2015 as she was feeling unwell and she sought medical assistance.
On 17th January 2015 CM informed her that her shifts were being changed to two eight hour shifts during the week. Neither her sister’s, who also worked in the company, nor J’s hrs were changed. She wrote to JM the following day outlining that these shifts did not suit her and was willing to compromise. Her suggestion was that she work either a Friday and Saturday night shift or a Sunday and Monday night shift as she would have difficulties with child minders for the other suggested shifts. She also stressed that she needed a minimum of 19-20 hours a week. She received no response to this letter. She spoke to GM. She was then told she was being issued with a first verbal warning.
The following Friday she worked her shift. On Sunday she felt very unwell and visited the doctor. She was prescribed medication and subsequently furnished the company with medical certificates thereafter. Her GP advised her to leave her employment.
On 27th February 2015 she resigned from the company and requested her P45 and outstanding entitlements due to her.
Since then she did two on line courses and applied for several positions and left her CV into the library. She has not secured alternative employment.
Respondent’s Case:
JW owner of the business gave evidence. The claimant had worked in the business for some years and left in 2007. In 2008 she asked GM for her job back.
In 2014 he put his savings into the business as the company was encountering financial difficulties. His wife had looked after the accounts in the business and she was let go. His two daughters who worked in the business also had their hours reduced significantly. GM’s hours were reduced too. He did not discuss these difficulties with the staff at the time as he did not want the drivers to leave and seek employment with another company.
He together with GM have access to the office. Notes can be passed into a capsule which feeds into the safe. He never received any letter from the claimant.
He never telephoned the claimant. She mostly telephoned GM.
GM is manager of the business for over twenty years. In 2008 the claimant’s father contacted him enquiring if he would re-employ her.
In January 2014 he was put on a three day week but he went into work six days a week. His role entailed looking after the staff and drivers. When he received complaints about drivers he always spoke to them personally.
He checked the office and safe on a daily basis. Sometimes notes were dropped through the capsule into the safe. The claimant was always treated fairly. If at any time she needed to change her shift she was duly accommodated.
The only letter he saw from the claimant was her letter of resignation. As it was sent by registered post he signed for the letter and passed it to JW as it was addressed to him.
CM became night manager in July 2014. The claimant’s partner had complained about his treatment by J and he fully investigated the matter. He reviewed CCTV footage over a 32 hr period. He concluded that it was all fabricated and there was no substance to the complaint.
He never bullied or harassed the claimant. Due to financial difficulties in the company and to keep the company afloat he spoke to the claimant in his car explained the situation to her on 3 January 2015. The company wanted to make cut backs in the week end shifts. The claimant was uncertain if she could change her shifts. She got out of the car and slammed the door. She worked one shift after that and never returned to work.
Determination:
The Tribunal places particular emphasis on the letter of 27th February 2015 in which the claimant referred to having sent previous letters dated 7th December 2014, 21st December 2014 and 18th January 2015 to the respondent. If it is to be accepted these previous letters were received by the respondent – and in this respect the Tribunal prefers the evidence of the Claimant - it is then incontestable that the respondent was put on notice of the issues that were raised in the said letter dated 27th February 2015 sent by registered post .
Rather than engage with the claimant on these matters the respondent simply left matters in abeyance and did not engage with the claimant in respect of any of the serious matters.
The onus is on the claimant in a constructive dismissal case to exhaust all internal remedies and prove to the satisfaction of the Tribunal that she had no option but to resign from her employment. The Tribunal is not satisfied after the letter of resignation dated 27th February 2015 the claimant made any efforts again to engage with the respondent. However this does not absolve the respondent from its duty to enquire into and investigate the claimant’s complaints.
In all the circumstances the Tribunal awards the claimant €12,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)