EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Amanda Malone UD407/2015
against
Cherry Grove Nursing Home
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Ms S. Kelly
heard this claim at Wexford on 11th April 2016
Representation:
Claimant:
Mr. Padge Reck, Sunrise, Mulgannon, Co. Wexford
Respondent:
Mr. Eric Furlong, Coghlan Kelly, Solicitors,
Trinity Chambers, South Street, New Ross, Co Wexford
Background:
The claimant commenced work with the respondent on 6th September 2013 as a part-time care assistant and her employment finished on 20th March 2015. The claimant earned €275.00 per fortnight. The claimant alleges that she resigned from her employment on 20th March 2015 due to the conduct of the respondent and accordingly she was constructively unfairly dismissed.
The Claimant’s Case:
The claimant gave evidence that she applied to the respondent for a job. She could only work part-time because of her child-care needs. Initially the claimant worked four shifts over four days but early on into her employment this was reduced to three shifts over three days, at the claimant’s request, in order that she would be eligible for social welfare payments for the other days. The claimant was required by the Dept. of Social Protection to submit forms, signed by the respondent, on a weekly basis usually on Thursdays. If the form was not submitted to the Dept. on Thursday the claimant would not receive her weekly payment of €175 the following Tuesday.
On Tuesday, 17th March 2015 (the St. Patrick’s Bank Holiday) the claimant left the form to be signed by SC. The claimant sent two text messages to SC enquiring about the form but received no reply. The claimant called to the premises of the respondent on Thursday, 19th March 2015, to collect the form and was told that SC was doing an appraisal. It was the claimant’s evidence that it was indicated to her that it was ok to go to SC. The claimant said she knocked on the door and SC came to it and she asked about her form. She told the Tribunal that SC said that she had not received the texts, that the form wasn’t signed and that she shouldn’t be signing these forms as the claimant wasn’t available for full-time work; that she, SC, had been on to social welfare and that was what they had told her. The claimant said she could not continue to work if she wasn’t going to get the social welfare payment and she felt she had no option but to resign. She said she received a text the next day, Friday, from the respondent saying the form was signed and could she bring her letter of resignation with her. The claimant brought the letter of resignation, which was opened to the Tribunal, and collected her form from the respondent which was now signed.
It was the claimant’s position that because the respondent indicated on the social welfare form that the claimant wasn’t willing or available to work full-time she was attempting to frustrate her social welfare payment.
In cross-examination it was put to the claimant that the respondent did not refuse to sign the form but that she could not sign it when the claimant called because she was in the middle of a staff appraisal. It was put to the claimant that she was told to come back later. The claimant disputed this. As far as the claimant was concerned the respondent refused to sign the form and “wasn’t very understanding”. It was put to the claimant that the respondent had accommodated her with reduction in shifts which resulted in the claimant getting the social welfare payment. The claimant did not dispute this. It was put to the claimant that the respondent had signed the form every week. The claimant said the signing of the form was a new thing. Nonetheless it was put to the claimant that since its introduction the form was signed each week. Forms for the previous system were opened to the Tribunal and the respondent had signed these.
It was put to the claimant that the week in question was different in that it contained a public holiday and that was why the form had not been signed in as timely a fashion that week.
When asked to clarify for the Tribunal what caused her to resign the claimant said it was because the respondent had refused to sign the form. In answer to the Tribunal the claimant said that she lived about 5 minutes away from the respondent’s premises.
The claimant gave evidence of mitigation of losses and told the Tribunal that she is still unemployed.
The Respondent’s Case:
SC, for the respondent told the Tribunal that she had 71 employees about 9 of whom were part-time workers who claimed a social welfare payment and that she signed and continues to sign the necessary forms for the Dept. of Social Protection. She said that she changed shifts regularly for the claimant in order to accommodate her family situation. Documentary evidence of requests by the claimant to vary shifts was opened to the Tribunal. On the day in question she said she was carrying out appraisals when there was a knock on the door followed by another knock. She went to the door and the claimant enquired about her form and made reference to the two text messages she had sent. SC told her she had not received the texts, that she was in the middle of an appraisal and told the claimant she would have come back. She said the claimant then told her that she would have to resign.
It was put to the respondent in cross-examination that she refused to sign the form and had told the claimant that social welfare had told her that the claimant wasn’t entitled to claim as she wasn’t willing to do full-time hours. The respondent disputed that she refused to sign the form. She said she could not sign the form at that time, it was probably upstairs and that the roster would have to be checked prior to signing. She said she understood that only workers available for full-time work were entitled to claim a social welfare payment but that she did not refuse to sign the form.
CM, for the respondent gave evidence. She was the employee who was having the appraisal meeting with SC when the claimant came to the door. She had worked for the respondent since 2009 and was still employed there. She tried not to listen into the conversation between the claimant and SC but did hear some of it. There was disagreement between SC and the claimant but she did not hear the respondent refuse to sign the form. When asked in cross-examination if she heard the respondent tell the claimant to come back later she said “I don’t recall that”.
Determination:
Having considered the evidence adduced at the hearing the Tribunal finds that the reason the claimant gave for resigning her employment on 20th March 2015, viz. the respondent’s refusal to sign her social welfare form, is not supported by the evidence. Rather the evidence is that the respondent did not sign the form there and then when the claimant called for it during the carrying out of an appraisal of another employee. The Tribunal accepts that the respondent intended signing the form at a later stage despite her views on the claiming of the payment and this is supported by the fact that the respondent at all times prior had signed the forms and continues to so do.
Had the respondent refused to sign the form from thereon in it is a matter that could have been resolved with the Dept. of Social Protection as opposed to a resignation. This is supported by the fact that the claimant did call to the Dept. and sort matters out for the week in question. Accordingly, the Tribunal finds that even if the conduct alleged by the claimant was true it was not conduct such that entitled the claimant to leave her job and consider herself constructively dismissed albeit that the Tribunal accepts that the claimant was clearly upset at the prospect of not getting her social welfare payment in time or at all.
The Tribunal notes that both the Tribunal and the courts have consistently held that the bar to succeed in a claim for constructive unfair dismissal is high and the employer’s actions must be sufficiently grave, as a reasonable employee in that same position would easily have been driven to leave the job there and then.
Taking into account the foregoing the Tribunal, by majority, finds that the claimant has not discharged the burden of proof.
Accordingly, the Tribunal, by majority, determines that the claim under the Unfair Dismissals Acts 1977-2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)