UD358/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                      CASE NO.

Kristina Malinovska                                                                                           UD358/2015

against

OCS One Complete Solution Limited T/A Ocs Outsourced

Client Solutions

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. T. Ryan

Members:     Mr D. Moore

                    Mr F. Keoghan

heard this claim at Dublin on 30th March 2016

Representation:

_______________

Claimant:             Mr. Eamonn Hanrahan, E.M. O'Hanrahan Solicitors, 31

                            Fairview Strand, Fairview, Dublin 3

Respondent:         Mr Tiernan Doherty, IBEC, Confederation House, 84/86 Lower

                            Baggot Street, Dublin 2

This was a case of constructive dismissal,

Claimant’s case:

The claimant KM told the Tribunal that she worked in the Gold Circle of the airport as a lounge assistant preforming general duties for over 15 years. An incident occurred on 27^th January 2015 when she was approached by the duty manager DM and another person NP. They asked if they could check her handbag and found a plastic bottle containing alcohol. The claimant told the Tribunal that she had brought it to work, it was there for later when she was meeting friends, and it would be too late to buy some when she finished. She was advised to leave the area, and told that she was suspended pending an investigation.

Following an investigatory meeting and a disciplinary hearing where she told her story, the outcome was that “no sanction was applicable”. She was told to desist from taking alcohol to the workplace and advised that on her return to work she would not be returning to the Gold Circle but to cleaning duties in the food court. KM said that this made her very uncomfortable and she felt that all her co-workers and friends were aware of what had happened and her reputation was damaged. She said that she loved her job and wanted to return to it, not to clean toilets and remove rubbish in the food court area. A meeting was arranged to discuss her options on 27^th February and she then sought legal advice.

Under cross examination the claimant agreed that her contract classed her as a cleaner and that she had signed the contract. She also conceded that the respondent could move her to another location but disputed that she was offered alternatives like the wheelchair area and office cleaning.

Respondent’s case:  

ML, operations manager at the time of the incident, told the Tribunal that moving of employees to different areas was common place and the norm. He said that here was no ambiguity – the claimant was a cleaner. He had meetings with the claimant and she was offered relocation to the food courts, the offices behind the food court area, offices in the campus area (outside of the main area) and the wheelchair area. Her answer was always “no”. The locations offered were where there was a demand, as required by the client.

Under cross examination he stated that the claimant was suspended because of alcohol in her

handbag, searches were routine and that staff could be moved around as per the companies handbook.

Determination:    

In a claim alleging constructive dismissal there is an onus on the employee to prove that his/her dismissal was unfair. There is an obligation on an employee to try and resolve whatever the problem is before walking out of the job. The Tribunal in reaching its determination must apply the “reasonableness test” and ask: “was it reasonable of the employee in this case to act in this way?” The claimant was afforded every opportunity to return to work, an opportunity she refused to avail of. The Tribunal is satisfied that the claimants’ behaviour in failing to engage in any satisfactory manner with her employer was unreasonable.

The Tribunal is satisfied that the respondent was entitled to search the claimants bag, it did contain an amount of alcohol and they then made efforts to find a suitable alternative position for the claimant. As per the claimants terms and conditions and the company handbook the respondent is fully entitled to move an employee to another position.  

Having carefully considered all the evidence in this case, it is the unanimous decision of the Tribunal that the test for constructive dismissal has not been met.

Therefore, the claim fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)