EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Kathleen Sheehan UD1118/2014
against
Sansont Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms S. McNally
Members: Mr D. Hegarty
Mr D. McEvoy
heard this claim at Killarney on 31st July and 2nd November 2015
Representation:
Claimant : Mr. Mike Harper, Kerry Citizens Information Service,
Killarney CIC, 1st Floor Park Court, Beech Road, Killarney, Co. Kerry
Respondent : McGovern & Co., solicitors, Unit 1 Erne Business Park, Swanlinbar, Co Cavan
The determination of the Tribunal was as follows:
Claimant’s Case
The claimant commenced employment with the respondent in 2007. At that time her employer ran a family owned business but that business was taken over by the current company in March 2010. This change of ownership did not affect her place of employment as she remained working in a hotel near Killarney, county Kerry. The claimant signed a contract of employment with the respondent on 25 November 2013. That contract stipulated her to work in the accounts department on a part time basis. Her hours were rostered and she was required to work additional hours as business needs dictated. While her remuneration was explicitly stated it did not specifically refer to payments for her beyond her rostered hours. That contract also referred to a disciplinary and grievance procedure.
By 2013 the claimant reported to a new hotel manager and described her working relationship with him as okay. That relationship deteriorated over time and in October 2013 she felt that she was on the receiving end of an aggressive approach and resulted in the issuing of a verbal warning to her. That manager’s aggression shocked her, not least, as the sanction process was contrary to the respondent’s own procedures.
The claimant told the Tribunal that from time to time she worked extra hours beyond her rostered ones. No authority was needed for this as the objective was to get the work done rather than leave the tasks incomplete if not completed within the rostered hours. This practice was never queried and she submitted work time analysis and reports to the head office in Ballyconnell county Cavan. There was no feedback to those reports. In December the claimant noticed her extra claimed hours went unpaid and when she queried this at head office she was referred to her manager. That manager reacted in a rude, aggressive, and bullying manner towards her and as a consequence she raised this issue in an email to head office. By the end of that month the claimant had received her proper payment and she considered the matter closed.
However, she received a letter dated 16 January 2014 from her manager seeking a detailed schedule of the hours worked pre-Christmas with details of the tasks undertaken during those hours. This information was to be submitted by 31 January 2014. Contrary to what was stated by that manager the claimant was adamant that she had never been told that unauthorised overtime would not be paid and that she had to get permission to work extra hours. On 30 January 2014 the claimant furnished her detailed hours and work schedule. She described the response from her manager seeking more detailed information as unreasonable and impossible. The claimant was so upset at the attitude of the manager and the threats received that she sought and received medical attention. From 7 February 2014 onwards she sent in medical certificates to cover her ongoing absence from work.
Four days later the claimant wrote a letter to the respondent detailing her grievances against the hotel manager. She also stated that she was unable to work due to his behaviour. In reply she was invited to address and air her concerns to what was termed as an independent party. She agreed to attend the meeting with the independent party. Following a meeting with the independent party the claimant received a letter dated 11 March 2014. That independent party concluded that having reviewed all the information provided by her and that of the manager, that he could not uphold her complaint. This independent consultant added that her treatment by her manager “did not go beyond the reasonable chastisement on the part of an employer”.
The claimant found this conclusion unacceptable and disappointing and on 21 March 2014 wrote to that consultant expressing those feelings. She also stated to him that she believed her complaint had not been dealt with fully and impartially and concluded he was not an independent party in this scenario. In that context she felt she had no other option but to terminate her own employment with the respondent. In further correspondence with the company the claimant indicated that the trust between her and the respondent had been severely damaged due to the way her grievance had been managed.
While the claimant was hesitant to attend a proposed meeting with another party nominated by the employer she agreed to meet him to appeal against the original finding. That nominated party was a solicitor. Her resignation was put on hold for the duration of that process. The claimant received a result of that appeal hearing in July 2014. The solicitor concluded that her claim of bullying was unfounded. The claimant then told the respondent that her resignation on 21 March 2014 still stands.
The claimant’s representative also gave evidence of his experience of attending a meeting with her at the appeal hearing. This witness told the Tribunal that he found the solicitor’s attitude disturbing as the appellant was not given a reasonable and fair hearing. That solicitor would not entertain or indeed allow this representative speak on behalf of the claimant. This witness observed that the solicitor did not give reasons for his findings.
Respondent’s Case
The general manager of this hotel told the tribunal in taking on the role of General Manager in 2013, his function was to restructure and reorganise the Hotel with the aim of returning it to profitably. Efficiencies in running the hotel were required and this included staff multitasking especially during quieter periods. This witness analysed each individual aspect of this establishment, the roles and tasks of all employees and wanted to “sort out the small things to put the larger things right”. Detailed evidence was given by the manager on how he set about the restructure of the Hotel and its staff. Most of the staff cooperated with this approach but one exception was the claimant. This manager conceded that he failed to get her “to buy” into this process. In November 2013 the respondent issued a verbal written warning to her due to her work performance. By the end of 2013 an issue arose over the number of hours the claimant worked and the nature of that work. The extra hours claimed by the claimant were referred to him by HR of the Group, the extra hours had to be justified. A decision in HR was to pay the hours and investigate the justification for them afterwards. The manager followed up on the investigation in January 2014. This lead to a further deterioration in his relationship with her.
While this witness accepted he might not have used the “right terminology” he was never aggressive towards her. Her subsequent grievances and ongoing complaints were dealt by others who were external to the company.
Determination
The Tribunal having considered the evidence of the all the parties, cannot ignore the fact that the claimant was offered to participate in a grievance process and while that process was in her estimation less than ideal she nevertheless did not fully exhaust it. Furthermore, she was offered an appeal process which upheld the decision that the allegation of bullying and harassment was unfounded.
The Tribunal is not satisfied that the claimant met the necessary conditions to justify her resignation. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 must fail.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)