EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Carmel Hayes UD1250/2014
against
Cogan International College Limited (in liquidation)
T/A Cogan Bel Childcare and Early Learning Centres
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr D. Hegarty
Mr J. Flavin
heard this claim at Cork on 7th January 2016
Representation:
Claimant: Ms. Sarah Daly B L instructed by
Ms Claire Moran, Michael Powell, Solicitors, 5 Lapps Quay, Cork
Respondent : Mr Gerard Murphy, Gerard Murphy & Co.,
46 St Marys Road, Midleton, Co. Cork
The liquidator did not participate in the proceedings to defend the claim of unfair dismissal but an observer on behalf of the liquidator attended the hearing as an observer. The previous owner of the business, who dismissed the claimant, did not attend the hearing.
The determination of the Tribunal was as follows:
As this is a constructive dismissal the onus of proof is on the claimant.
Summary of the Claimant’s evidence
The claimant commenced employment as a childcare assistant in October 1996 with a previous owner of the respondent’s business. She had a positive relationship with that management and received positive feedback. She has a post graduate Montessori qualification. She was appointed the Manager in the Donnybrook child care centre in April 2011.
The respondent took over the business in late 2012. The managing director’s experience was in teaching language rather than childcare. From around September 2013 there was a significant change in the claimant’s role and she worked mainly in the office in an administrative role, focusing on being manager (rather than a preschool teacher) and managing up to eight staff as well as covering staff breaks. The latter part of 2013 was stressful for the claimant coping with her duties, her father’s final illness and staff shortages at work. She indicated to MD and MM in late October/early November 2013 that the staff shortages would impact on the children’s welfare. While the respondent authorised the hiring of one childcare worker this was offset when another member of staff went on maternity leave. She had difficulty juggling her role as manager as well as providing cover for the care assistants’ breaks. Up until January 2014, the claimant did not have formal work appraisals and had neither been subjected to the disciplinary process nor reprimanded.
On 24 January 2014 MM and another lady came to the centre and summoned her to a meeting. At the meeting she was told that they wanted to establish facts. Statements from three members of staff, made during interviews with them on 23 January 2014, were produced to her, alleging that she mishandled children and was guilty of dereliction of duty. The claimant was shell shocked at the allegations. None of these care assistants had ever before indicated that they had a problem with her and no issues had been raised with her by the respondent or the parents. If there had been CCTV coverage in the centre she could prove her innocence. Neither MD nor MM had come around to monitor the progress of the work. At the end of the meeting the claimant was suspended on pay pending the outcome of the investigation. The claimant was not allowed to collect her personal effects and these were later handed over to her on the forecourt of a local garage where she had to sign for them. She was humiliated and felt like a criminal.
Following the meeting of 24 January the respondent interviewed the five other employees about the claimant and took statements from them. All these interviews were held on 27 January 2014. One of these employees told the claimant that she was not informed that the phone call she received and the ensuing conversation was to constitute a statement about her (the claimant).
By way of letter of 4 February 2014 the claimant was invited to a disciplinary hearing to answer allegations of:
- rough and potentially aggressive handling of children
- shouting and behaviour towards children contrary to her role as a child care worker
- undue attention and care paid to children and potentially leaving children in her care exposed to danger
- dereliction of her duties as manager
On her doctor’s advice the claimant did not attend the disciplinary hearing arranged for 7 February and it was rescheduled to 26 March 2014. Her pay was stopped while she was on sick leave. The statements of the other five employees were forwarded to the claimant on 19 March 2014. MD put the allegations to the claimant at the disciplinary hearing on 26 March 2014. The claimant felt she had acted appropriately in the circumstances alleged and that her behaviour did not constitute gross misconduct. MD had been aggressive during the hearing and kept interrupting when she was responding to the allegations. By letter of 1 April 2014 MD notified the claimant of his decision to dismiss her citing gross misconduct and a lack of trust in her as the reasons for her dismissal. The claimant’s evidence to the Tribunal was that her responses, as set out in the letter of dismissal, were “twisted”. As she has arthritis her movements are slow and could be misinterpreted.
The claimant objected to having MD’s wife as the independent appeals officer. The appeal was heard by an external appeals officer on 18 June 2014. The appeals officer found that the sanction of dismissal was too severe and recommended that it be reduced to a final written warning together with a period of retraining and performance management. The respondent communicated the decision to the claimant on 2 July 2014 but there was no indication as to its implementation. The claimant’s solicitor wrote to the respondent on 7 July 2014 in the following terms:
“After seventeen years of service our client was dismissed we would venture to say in a manner that was akin to being “ambushed”
Her pay was stopped upon submission of her first sick certificate in circumstances where our client was sick due to the stress of the situation she found herself in at the hands of her employer.
Her reputation has been damaged.
Her trust and confidence in the Company to honour its duty of care to her as her employer has diminished and it is difficult to see how harmonious working relationships within the workplace can now be fostered in circumstances where each and every one of the other employees of the Company has presented (upon request) statements against her.
This sense of diminished trust and confidence has been confounded by the fact that no apology accompanied the outcome of the appeal.”
The claimant’s solicitor wrote to the respondent again on 17 July 2014 seeking a response to his earlier letter as a matter of urgency. On 18 July 2014 the respondent replied indicating to the claimant that she was being re-instated to her position as Centre Manager, that there would be a period of retraining and formal performance management which would be implemented across both of the respondent’s centres. This response did not address the issues raised by the claimant’s solicitor and her resignation was tendered through her solicitor by letter of 25 July 2014. The claimant’s position was that her confidence in the respondent was shattered: MD gave no indication how she would be reintegrated back into the workforce, her reputation was destroyed, the respondent had elicited complaints about her from the staff, she was not told what explanation would be given to the parents and the respondent failed, despite her solicitor’s request, to indicate how he would deal with the fact that she had not received any pay from the date of her dismissal. Due to her lack of faith and confidence in the respondent the claimant could not resume her employment with the respondent.
Determination
In a claim for constructive dismissal the onus of proof is on the employee/claimant. To discharge this burden of proof the claimant must demonstrate that because of the conduct of the employer she was either entitled to terminate her employment or it was reasonable for her to do so (section 1(b), Unfair Dismissals Act 1977).
During her seventeen years in the employment, albeit she had only worked under MD since late 2012, the claimant had never received a warning or reprimand about the manner in which she performed her duties. There had been no indication whatsoever that there was a problem with her performance. Then on 23 January three employees made a series of complaints about her and five days later complaints were elicited from the remaining five employees. It is not clear to the Tribunal whether the earlier complaints were also elicited from those three child care workers. If there were this level of issues with the claimant’s performance it is difficult to understand why they had not been brought to the claimant’s attention at an earlier stage and why she was not given the opportunity to improve. Neither MD nor MM nor any of the other care assistants were present to confirm the evidence against the claimant or to be cross-examined as to the veracity of their statements. When the claimant’s appeal was successful it was reasonable for her to have concerns about her re-instatement to her former position. MD failed to address these concerns when brought to his attention. The Tribunal accepts that the claimant’s position as Centre Manager was wholly undermined. It was reasonable for her to have lost faith and confidence in her employer and to terminate her employment with the respondent.
The claim under the Unfair Dismissal Acts, 1977 to 2007 succeeds. The Tribunal awards the claimant the sum of €40,000.00 as compensation under those Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)