EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Angela Barden - claimant UD814/2015
Against
Lough Rynn Castle Limited
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr M. Gilvarry
Members: Mr. D. Morrison
Mr T. Gill
heard this claim at Carrick-On-Shannon on 21st March 2016 22nd June 2016
and 23rd June 2016
Representation:
Claimant: Mr. Lars Asmussen BL instructed by Mr. Sean Ormonde, Sean Ormonde & Co., Suite 19, The Atrium, Canada Street, Waterford
Respondent: Mr. Bart O’Donnell BL instructed by O’Shea Legal, 3 Chancery Place,
Dublin 7
The determination of the Tribunal was as follows:-
This being a case of constructive dismissal it fell to the claimant to give her evidence first.
Claimant’s Case:
The respondent is a hotel. The claimant was employed as a Front Office Receptionist and commenced employment on 24 September 2007. Her duties were checking float/balance and all other desk duties.
The General Manager (GM) was always abrupt towards the claimant and she could not do anything right and he was always watching her. He would ignore the claimant or address her managers instead. The claimant felt nervous and extremely uncomfortable in his presence.
The claimant had a thirty minutes lunch and two 15 minutes break even though she did not get proper breaks and always seemed to be begging for a break.
In August 2009 the claimant attended a meeting. Both GM and the Front House Manager (FHM) were present. The claimant was told she would have to leave or be sacked. GM said if she left he would give her a good reference and if not there would be no reference forthcoming. The claimant needed to work. She told GM that he would have to sack her. She had no disciplinary issues at the time. GM was taken aback that she did not leave and the meeting ended fairly quickly. GM was not aggressive but was a bit threatening. The claimant looked for copies of the notes but GM said as it was not an official meeting and after that GM refused to speak to the claimant unless he had to. She completely lost trust and confidence in the respondent.
GM was always looking over her shoulder after that. GM did not seem to treat anyone else in the same way.
The claimant attended a disciplinary meeting on 18th August 2011. Several issues were raised with the claimant during the course of this hearing. She was issued with a first final written warning on 13th October 2011. She thought the sanction was too severe and asked for it to be withdrawn. While the claimant had made mistakes at work she thought it unfair to be issued with a final written warning.
The claimant had been given no prior warnings before this. She felt stage 3 of the disciplinary action was given to her so that she could be sacked at a moment’s notice.
The claimant attended a disciplinary hearing on 9th December 2011. Several issues were discussed including her husband’s hairdressing business. She had asked if her husband’s business could be added to the list of hairdressers businesses used by the hotel. She was questioned about promoting the business. This business was subsequently taken off the hotel’s list of businesses. The claimant felt GM was out to get her all the time. She was issued with a second final written warning.
Anything the claimant did GM seemed to pick up on it. She had no trust or confidence in him at all.
Following her absence on annual leave in April 2012 the Deputy General Manager (DGM) asked her to meet him on 21st April 2012. During the course of the meeting she spoke to him about GM’s treatment of her. DGM asked her if she had made a formal complaint. He told her there were procedures and he said he would look into it and get back to her. He never reverted to her. DGM never attempted to resolve the bullying complaint.
The claimant was always anxious and wondering what was going to happen next. When GM was on duty the claimant tried to avoid him.
The claimant would have liked not to have to work the late shift over Christmas 2013. She spoke to FHM about the roster but was told her shifts would not be changed. They thought she had enough time off on other days. The claimant told her she was being obtuse. GM said she owed FHM an apology. The claimant spoke to FHM and told her she had not meant to be offensive but if she had she was sorry.
On 18th February 2014 the claimant suffered chest pains and had to go to hospital. She was in the hospital until 5 am. She thought it inappropriate that FHM was telephoning her house at 8 am the following morning. She furnished the respondent with a medical certificate to cover the period 19th February to 24th February 2014. She was surprised at the level of medical scrutiny from GM. She was certified fit to attend work from 10th March 2014. She was extremely surprised to learn that GM had contacted her GP directly after her having received the medical certificate. She never gave her permission for him to do so. It was an invasion of her medical privacy. She was told she had to see the company doctor.
The claimant felt GM was subjecting her to more harassment. She returned to work. GM never enquired how she was and he still continued to ignore her.
She was called into a meeting to address issues. She had no advance notice of this meeting. She felt they were nit picking. She had thought things were getting better. She felt nervous all the time.
The claimant was invited to a further disciplinary meeting on 6th September 2014 to discuss several issues. The matters at hand were: unauthorised distribution of company emails, conducting administration work for her own personal benefit, communication and correspondence with an employee on matter that were not of relevance to her or her duties and breach of confidentiality. She was unable to attend but was unable to speak to anyone in the hotel and offer an explanation. She was asked for a detailed explanation.
The claimant attended the rescheduled disciplinary hearing on 9th September 2014 and also to a further rescheduled disciplinary hearing on 11th September 2014. GM and FHM were also in attendance. At that meeting the claimant said she felt that GM was picking on her and harassed her. GM said that if she felt aggrieved that the employee handbook lists the avenues available to her on this matter. She felt GM was not impartial at the hearing. The atmosphere was tense at the meeting. When the meeting concluded the claimant was issued with a final written warning.
Any time the claimant did anything it seemed she was being disciplined for it.
In February 2015 the claimant had a family bereavement. She tried to discuss it with the Operations Manager (OP) but he was busy. She spoke to MR. She had to travel to England for the funeral and would be out for the week. She spent about a minute on the computer checking in for her flight. She returned to work the following week. She was put on suspension.
She felt the purpose of the suspension was to humiliate her and make her feel bad.
She was issued with a further final written warning following that meeting.
She attended a further disciplinary meeting on 5th March 2015. Issues at that meeting included her absence from work from 17th February to 21st February and conducting administration work for her own personal benefit in the workplace.
She felt anxious going to work every day. She felt she could not do her job properly and was sanctioned for everything she did. Everything got on top of her. She lost trust in the respondent.
She gave the respondent notice of her intention to resign from her employment with effect from 4th May 2015 and agreed to work out her notice. During her notice period the claimant had an altercation with GM over a bottle of water sitting on her desk which GM claimed was leaking. He asked the claimant to remove it from the front desk. She refused to do so and he grabbed the bottle and the claimant subsequently grabbed it back from him. She then took her bag and left. She did not expect GM to apologise to her – it was always his way or the highway.
When GM was not present everything worked fine. The claimant did not feel her complaints had been taken seriously. She felt the respondent wanted to get rid of her.
The claimant has been unsuccessful in securing alternative employment since she resigned from her employment.
Respondent’s Case:
GM gave evidence. Together with this hotel the respondent owns a second hotel. GM has responsibility for 126 employees. The claimant was supervised by FHM.
He held an informal/impromptu meeting with the claimant in August 2009 and FHM also attended that meeting. He raised performance issues with the claimant. He never told the claimant that she would not get a reference from the hotel.
Following a disciplinary meeting on 18th August 2011 with the claimant during which issues which included a group booking and promotion of the family hairdressing business the claimant was issued with a first final written warning. She appealed that decision but the decision was upheld by the respondent.
During the course of a disciplinary meeting with the claimant on 9th December 2011 the issue of diverting sales away from the respondent and conducting administration work for the claimant’s own family business were discussed. The claimant was issued with a second Final Written Warning which was placed on her file for a further six months.
The claimant had an issue with the Christmas 2013 rota. The witness had spoken to the claimant and advised her of the policy in place in the hotel for working over the Christmas period. He looked through the rota and believed it had been drawn up in a fair manner.
Following the claimant’s illness in February 2014 the witness sought further clarification from the claimant’s general practitioner’s practice in relation to the claimant’s return to work. He wanted to treat the claimant’s return with particular care. They were concerned for her well being. The respondent does not have a company sick pay scheme however the claimant was paid during her absence. The matter was resolved and the claimant returned to work.
The claimant attended a disciplinary hearing on 6th September 2014 to discuss further issues of concern to the respondent. The meeting was rescheduled for 11th September 2014. Following that meeting the claimant was issued with a further Final Written Warning for a further twelve months.
A further disciplinary meeting was held on 5th March 2015 to discuss the claimant’s absence from work following her uncle’s funeral in England and conducting administration work for her own personal benefit. Her current final written warning was extended to the full twelve month period.
The claimant tendered her resignation from the company but said she would work out her notice period. During the course of claimant’s notice period the witness had an issue with the claimant leaving a bottle of water sitting on her desk - the reception desk. The respondent’s policy is that no liquids are permitted on the reception desk. He wanted the bottle removed from the reception desk. The front reception desk is a public area. He asked the claimant to remove the bottle and as she did not he tried to remove the bottle himself. An altercation occurred. He never shouted or swore at the claimant.
The claimant never lodged any formal complaints with the respondent.
The witness had lost confidence and trust in the claimant. He had no confidence in the claimant completing tasks he assigned to her. He never treated the claimant differently to other staff.
Determination:
The Tribunal carefully considered the evidence adduced during the course of this hearing over three days.
The claimant’s case is for what is colloquially known as constructive dismissal. This arises in situations where an employee resigns but claims he/she has no option but to do so was reasonable and in all the circumstances he/she had to resign.
In this case the claimant complained of bullying, harassment and victimisation by the General Manager, GM. She also complained that she was subjected to inappropriate excessive disciplinary procedures during which fair procedures were not followed. The claimant gave evidence of having complained of bullying and harassment by GM to the Deputy General Manager (DGM), FHM her Line Manager, Group General Manager (GGM) a Director of the hotel and GM himself. The complaint to DGM was made during a disciplinary hearing in August 2011.
The respondent admits that the issue was brought up by the claimant at this hearing but claimed that the claimant was advised to make a formal complaint. The claimant confirmed this but also stated that in view of GM’s position as Director of the hotel she asked to whom she could make a complaint and was told by DGM that he would look into it and get back to her. She says he never did so. DGM was not called as a witness and the Tribunal therefore accepts the claimant’s evidence in this regard.
The claimant also stated that she complained to C, a Director of the hotel during a disciplinary hearing in December 2011. Again the respondent admits that the matter was mentioned but stated they could do nothing about it without a formal complaint being made.
The claimant also raised these issues during a disciplinary hearing with GM in August 2014 and March 2015. Despite this, GM found it appropriate to continue as adjudicator in both disciplinary meetings.
In relation to disciplinary matters the Tribunal noted the first disciplinary meeting undergone by the claimant led her to being issued with a final written warning as with the second, third and fourth. The final written warning given in the third disciplinary hearing seemed to be over an extremely trivial matter. The final written warning given in the fourth disciplinary hearing was excessive in the circumstances.
The Tribunal has often explained the importance of following internal procedures before any resignation takes place in cases of this nature. One of the main reasons for this is that it is unfair for an employer to have to face such a claim without having the opportunity to rectify matters internally. However, in this case two Directors of the company were aware of the claimant’s complaints and also two other managers, DGM and FHM.
The Tribunal feels in those circumstances that the company should have insisted that a complaint be processed or allegations completely dropped. The claimant was clearly putting the respondent on notice and had clearly stated her difficulty in making a formal complaint against GM of the company.
The Tribunal feels that it is entirely inappropriate that GM carried out two final disciplinary hearings. The Tribunal finds that it was reasonable for the claimant to resign in all these circumstances. While the incident with the water bottle occurred after the claimant tendered her resignation, the Tribunal prefers the claimant’s evidence, and which was indicative of the atmosphere in the workplace between GM and the claimant. GM’s email in response to her request for an apology was unimpressive. The Tribunal would have expected the respondent to have made some effort to resolve the claimant’s issues after she had tendered her resignation but instead there was this unedifying incident between GM and the claimant.
The Tribunal therefore finds in favour of the claimant and taking all factors into account determines the appropriate remedy is compensation. The Tribunal heard evidence of loss and of mitigation thereof. The Tribunal noted that the claimant did not provide much in the way of evidence of mitigation.
In the circumstances the Tribunal awards the claimant the sum of €10,500.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)