EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Edyta Matyzewska UD1309/2014
- Claimant MN650/2014
against
G4S Support Services (Ireland) Limited
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms V. Gates B.L.
Members: Mr J. Horan
Mr J. Jordan
heard this claim at Dublin on 5th November 2015
and 1st February 2016
Representation:
Claimant(s) : Ms. R. Moore Vaderaa BL instructed by:
P.C.Moore & Co., The Georgian Business Centre, 20 Baggot Street Lower,
Dublin 2
Respondent(s) : Mr. Tim O'Connell, IBEC, Confederation House, 84/86 Lower Baggot Street,
Dublin 2
The determination of the Tribunal was as follows:-
Dismissal is in dispute.
Claimant’s Case:
The claimant gave evidence that she commenced employment with the respondent company in 2007 at which stage she received a document, which purported to be a contract of employment which she was asked to sign and return to the respondent. She did not receive a copy of any company grievance procedure.
On the 14th February 2011 she was appointed as a Cleaning Supervisor located in the Four Courts working an 18 ½ hour week. She was informed the rate of pay was €10.50 per hour and was advised this rate was only applicable to the position in the Four Courts. The claimant was given a letter of appointment dated the 15th February 2011 which stated inter alia “should the contract cease or is terminated by the Four Courts, (the respondent) will endeavour to find you an alternative site which carries a Supervisor rate of pay, however, should we be unable to find an alternative site you will be required to revert to the JLC rate of cleaning staff, currently €9.50 per hour.” The claimant signed the said letter accepting the terms and conditions therein and returned it to the respondent.
The claimant told the Tribunal that as she was only working an 18 ½ week for the respondent she also worked part-time for another cleaning company – I Ltd.
In 2012 the respondent lost the cleaning contract in the Four Courts, however the claimant remained working there for her other employer, I Ltd. In October 2012 the claimant was moved to another site for the respondent – GT and paid a lower hourly rate of pay.
On the 14th January 2014 the claimant emailed the respondent’s HR Advisor (TB) concerning the contract of employment which she had not received for her position working in GT. She also queried her hourly rate of pay. When she received no reply she emailed again TB on the 28th January 2014. On the 17th February 2014 she again wrote to TB querying the fact she had been working in GT since October 2012 and had still not received a contract of employment and her “scope of responsibilities”.
The claimant told the Tribunal that she finally received a reply on the 19th March 2014 but had not agreed with the explanation given finding it “unsatisfactory”.
In July 2014 the claimant spoke to her Area Manager (RD) requesting a move from the site – GT. In cross-examination the claimant said she had not told RD she wanted to step down as a Supervisor and move to another location as a Cleaning Operative.
On the 7th August 2014 correspondence crossed between the claimant and RD. (these emails were opened to the Tribunal). The claimant told the Tribunal that during that week she had trained in a new employee in the role as a Supervisor on the GT site. RD had informed her that this person would cover her shifts if and when she, the claimant, was on leave. The claimant explained to the Tribunal that when she commenced work on the GT site she was trained by the outgoing Supervisor. When she trained this new employee in August 2014 as a Supervisor she understood that she, the claimant, would probably be leaving.
On the 8th August 2014 TB wrote to the claimant regarding her conversation with RD on the 10th July 2014 requesting to step down as Supervisor on the GT site and her request for hours as a Cleaning Operative on another site. He also outlined four offers which RD had made to the claimant and the claimant refused. He outlined in his letter that a Supervisor replacement was made in the GT site following a recruitment and selection process in July / August. He also informed her that as she had declined the four offers made to her she would not be rostered for duties the following Monday but said that the respondent would be in touch with further offers. The claimant told the Tribunal that she deemed this as a dismissal. The respondent did not contact her with any offers of work again.
The claimant gave evidence to mitigate her loss of earnings.
In cross examination she confirmed that she had understood the letter she received and signed regarding the position she had held while employed in the Four Courts.
When asked, the claimant stated that she had never resigned but had wanted to move to another site as a Supervisor. When asked what rate of pay she received while working in GT she replied it was €9.50 per hour and was not happy with that rate.
The claimant told the Tribunal she had not wanted to leave the respondent but had only wanted to move from the GT site as a Supervisor to another Supervisory position in another location. The claimant told the Tribunal that the GT Manager on site had been complaining over a period of two years regarding the cleaning, she and RD had discussed the issues. She told RD they, the staff, could do no more than they were already doing.
When asked if the respondent had sent her a letter to inform her she was dismissed from her employment, she replied no but understood the letter of the 8th August 2014 to mean it was her last day of work.
When put to her she said she had never raised a formal grievance with the respondent.
Respondent’s Case:
The HR Advisor (TB) gave evidence. He explained that was the HR Advisor in the Department from 2011 until September 2014 when he moved to another Department within the respondent company. His role was to liaise with 3 - 4 Area Managers, including RD. The Area Managers, in turn, dealt with the respondent’s staff and clients on a day-to-day basis.
TB told the Tribunal since that time in question Department had wound down and all the Area Managers, including RD had either left or were made redundant and therefore he was the only person who could give evidence in respect of this case.
TB said he first became aware of the claimant’s issues was in July 2014 when RD informed him the claimant wanted to step down as Supervisor on the GT site. When asked he said he did not ask the reason why the claimant wanted to step down. Four alternative offers of work were offered to the claimant but she declined them all. TB explained the respondent had a staff of 400 with only 10-12 Supervisors. Supervisory posts were dictated by whether the client required one, not all clients were willing to pay for a Supervisor to be onsite and therefore if there was no Supervisory position to move the claimant into they could not “just create one.” When asked, TB said there was no evidence on file on any other offers, other than the four already mentioned, to the claimant.
On cross examination TB said he could not recall if he had received the claimant’s letter dated the 17th February 2014 and if he had replied to it but stated that if he had received it he would have forwarded it to the claimant’s Manager.
When asked, he said there was no written evidence of the claimant’s request to step down as Supervisor.
Determination:
There was a serious conflict of evidence in relation to whether or not the claimant wished to step down from her supervisory position and requested employment as General Cleaning Operative only. In resolving this conflict the Tribunal has given careful consideration to the evidence of both witnesses and the documentary evidence.
By email dated the 7th August 2014, the Area Manager (RD) set out her understanding of a conversation which she had with the claimant on the 10th July 2014 in which the claimant allegedly stated that she wished to “step down” as a Supervisor and take work with the company elsewhere but as a Cleaner only. In evidence the claimant disputed this and the respondent and the respondent’s only witness, the Company HR Advisor (TB) informed the Tribunal that he had, at no stage, spoken to the claimant directly in relation to the issue.
On the balance of probabilities, the Tribunal prefers the direct evidence of the Claimant that she did not intend to relinquish her supervisory position for the position of general cleaning operative only but asked rather, that she be re-deployed as a Supervisor elsewhere. This is the only reasonable explanation for the claimant’s refusal to accept the four different positions as a Cleaner at the respondent’s other sites. Further, the respondent failed to properly advise the claimant either verbally or in writing that as it only had 10-12 supervisory positions, it would be extremely difficult to re-deploy the claimant as a Supervisor.
In the circumstances aforesaid, the Tribunal finds the claimant was constructively dismissed. However, the Tribunal finds the claimant contributed significantly to her own dismissal and made no real attempts to mitigate her losses. Accordingly the Tribunal awards the sum of €750.00 (seven hundred and fifty euros) under the Unfair Dismissals Acts, 1977 to 2007.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 was dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)