EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Esther Foley UD903/15
Claimant
Against
Sacred Heart Community & Childcare Project Limited
T/A Sacred Heart Family Resource Centre
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Browne
Ms S. Kelly
heard this claim at Waterford on 20th June 2016, 29th August 2016 and 30th August 2016
Representation:
Claimant: Ms Helen Whately BL instructed by Mr Sean Ormonde, Sean Ormonde & Co, Solicitors, Suite 19, The Atrium, Canada Street, Waterford
On 20th June 2016
Mr Lars Asmussen BL instructed by Mr Sean Ormonde, Sean Ormonde & Co. Solicitors, Suite 19, The Atrium, Canada Street, Waterford
On 29th and 30th August 2016
Respondent: Mr. John Goff , Nolan Farrell & Goff Solicitors, Newtown, Waterford
Background:
The case before the Tribunal was one of constructive dismissal. It therefore fell to the claimant to make her case.
Summary of evidence:
The claimant was employed as a part-time outreach worker with the respondent from January 2009 through to June 2015. The Tribunal heard evidence from the claimant, the Project Co-Ordinator and the Chairperson. The respondent’s policies and procedures were opened to the Tribunal.
It was the Project Co-Ordinator’s evidence that the centre in which she and the claimant had worked together was small. They became friends and along with another colleague had taken holidays together and confided in each other. There had not been a falling out but they had seen less of each other as the project grew.
The claimant gave evidence of an issue that arose concerning her starting time which was altered when the Board of Management became aware that the claimant had been late on a number of occasions. The claimant felt that a discussion about her lateness could have sufficed.
A further incident occurred on the 8th May 2014. The respondent was selling laptops due to downsizing and the claimant wanted to buy one and the Project Co-ordinator was aware of this fact. The claimant outlined in evidence that she became annoyed with the Project Co-ordinator when all of the laptops were later sold without her being offered one. She expressed her annoyance to the Project Co-Ordinator by not speaking to her initially and then thought she may have expressed her annoyance further by saying she was “pissed off.” It was the Project Co-Ordinator’s evidence that she was shocked by how the claimant responded to her and she did not believe it was appropriate for anyone to be spoken to in that manner.
On the 9th May 2014 the Project Co-Ordinator asked the claimant to attend at the office. The claimant was informed that the Project Co-Ordinator had spoken with the Board of Management concerning the claimant’s behaviour the previous day. It was the claimant’s evidence that she was warned a repeat of such abusive behaviour to a staff member would result in disciplinary action. The claimant asked for it in writing and told the Project Co-Ordinator that she had found her to be abusive on a number of occasions.
Following this meeting the claimant prepared a written complaint dated the 13th May 2014 to the Board of Management about the Project Co-Ordinator’s treatment of her. In the meantime a letter dated 14th May 2014 asked the claimant to attend a meeting, the purpose of which was to initiate an informal process. The informal process would discuss with the claimant her behaviour towards the Project Co-Ordinator and her subsequent verbal accusations on the 9th May that she had been treated in an abusive manner by the Project Co-Ordinator on more that one occasion. However, once the Board received the claimant’s letter of complaint a decision was taken to seek legal advice and the meeting with the claimant did not proceed.
Once legal advice had been received, the Chairperson of the Board wrote to both parties stating the Board’s intention to conduct an investigation into both the claimant’s complaint and the disciplinary issue against the claimant. A Staffing Sub-Group was established to investigate these matters.
The claimant’s letter of complaint was provided to the Project Co-Ordinator for a response and this response was provided to the Board on the 22nd May 2014. It was the Project Co-Ordinator’s evidence that she could not identify with what the claimant had written in her complaint and she was completely blindsided by it. She was shocked and could find no basis or foundation in her mind for the accusations made by the claimant. In particular the allegation that the claimant felt “unsafe” affected her greatly. The Project Co-Ordinator examined all contact she had with the claimant personally and professionally to see if she had given the claimant any reason to consider her a bully. She admitted that she ignored the claimant for a time after reading this complaint as she did know how to deal with it initially but once she overcame the shock they began to communicate with each other from open doorways. A “wall” was created between her and the Board while the matter was dealt with.
Both parties were asked to individual meetings with the Staffing Sub-Group tasked with the investigation. It was the claimant’s evidence that she was not given a copy of the notes from the meeting held with the Project Co-Ordinator. A further meeting was requested with the Project Co-Ordinator for some further information in relation to issues raised by the claimant. Some further information was also sought from the claimant relating to details around issues she had raised with the investigation team.
A letter dated 6th June 2014 informed the claimant that it was an oversight on the part of the investigation team not to provide her with the Chairperson’s response to her complaint and that a report would issue from the investigation team with their findings and recommendations and that should either party be unhappy with the outcome an option of appeal would be available. The claimant stated that she had no further opportunity to reply as no further meeting was held with her prior to her receiving the report of the sub-group.
In letters dated the 16th and 23rd June respectively the claimant expressed concerns held by herself and her union representative that people on the panel were named as part of her complaint and had a social relationship with the Project Co-Ordinator and for these reasons should have omitted themselves from the investigation. The claimant sought an external investigation carried out by someone unknown to both parties.
The Chairperson responded by letter dated 17th July 2014 stating that the claimant’s initial letter of complaint stated that her complaint was about the Project Co-Ordinator’s behaviour towards her and that other people mentioned were by standers. The letter sought to reassure the claimant that the investigation process would be carried out in a fair and transparent manner and that the Board was entitled to have an internal investigation in the first instance.
The investigation report by the Staffing Sub-Group subsequently issued to the parties stating a number of recommendations including that the claimant had a case to answer in relation to how she had treated the Project Co-Ordinator on the 8th May. The report also found that the issues in the claimant’s letter of complaint were either inconclusive or that there was no case to answer. The report recommended that the parties participate in external mediation. The claimant stated in evidence that she felt this report was unfair and she expressed this in a meeting she attended with her union representative. They outlined that they considered the process unequal and also expressed the claimant’s willingness to attend for mediation.
The claimant appealed the findings by letter dated 29th August 2014 on grounds of a lack of impartiality on more than one occasion during the process and inter alia the request for her to apologise to the Project Co-Ordinator, the finding that a disciplinary warning to her was warranted and that the claimant had a case to answer as well as the conclusions drawn about the pivotal incident. The claimant again sought an external investigator.
The Project Co-Ordinator refuted in cross-examination that her treatment of the claimant had changed following the receipt of the investigation report. She considered that matters were about moving forward at that point.
The appeal was conducted by an external party and the outcome was communicated to the claimant by letter dated the 15th October 2014. The appeals officer found that no disciplinary action issued in relation to the alleged incident on the 8th May 2014. A finding was also made that the meeting on the 9th May was informal in nature and was not a request for a disciplinary meeting. It followed that no apology from the claimant was necessary as no disciplinary was issued and the claimant did not have a case to answer. The letter concluded by stating that the Board would meet shortly to follow through on other recommendations including mediation.
The claimant wrote on the 26th November 2014 regarding the agreement between the parties that one-to-one meetings between the claimant and the Project Co-Ordinator would not take place until mediation had occurred. In the interim they agreed to communicate by email or by speaking to each other from an open doorway as had become routine.
The claimant wrote to the respondent in February 2015 and the mediator in March 2015 as she had heard nothing further regarding mediation and she felt matters were going backwards. It was the claimant’s evidence that she felt stressed in the workplace.
Evidence was given to the Tribunal about a number of issues that arose throughout March and April of 2015 regarding time off in lieu, training and the claimant providing details of her whereabouts while providing outreach services. It was the claimant’s evidence that she never before had to give a breakdown of her outreach hours and that she was now being micro-managed. The relationship between herself and the Project Co-Ordinator had regressed and they were no longer speaking in the hallway. The Project Co-Ordinator outlined in her evidence the reasons why the claimant did not attend the training. She also stated that she would always have spoken to the claimant regarding her whereabouts when undertaking outreach work for health and safety reasons among others. She refuted that she had micro-managed the claimant.
The claimant was absent from work on certified sick leave from the 9th March 2015 to the 17th March 2015. The medical certificates stated her absence was due to a work-related illness. She also wrote to the Chairperson seeking supervision support for her role as the external supervision she had paid for herself was coming to an end.
The Project Co-Ordinator stated that the relationship with the claimant went into a “tailspin.” By the time of a three way mediation session in April 2015 the relationship was in “total decline” and the claimant was refusing to recognise the Project Co-Ordinator as her line manager. In reply to questions from the Tribunal, she stated that she did not see the relationship as irretrievable but that they needed to be able to move forward and work together.
In April 2015 the claimant wrote a letter to the Chairperson of the Board having attended a three way mediation session the previous day which had been unsuccessful. The letter stated that she was still committed to making herself available to participate in constructive support to deal with ongoing issues affecting the working relationship since May 2014. A telephone call also took place between the claimant and the Chairperson where the claimant expressed that she was stressed and felt she was being micro-managed and some-what harassed.
A meeting on 14th April 2015 followed at which the claimant informed members of the Staffing Sub-Group that she was still feeling bullied in the workplace by the Project Co-Ordinator and that she did not “feel safe in the workplace.” It was the claimant’s evidence that she was told that her line manager had a right to know her whereabouts and that if the claimant required supervision or support she could obtain it from her line manager. The claimant in turn informed them that she feared being on her own with the Project Co-Ordinator that she felt bullied and she queried why there was no further mediation. The Staffing Sub-Group were to speak to the Board and revert to the claimant.
However, letter dated 16th April 2015 issued to the claimant from the Chairperson which outlined the response of the Board and stated inter alia:
that the claimant was accountable to her line manager for her day to day work and must be directed in her work by the line manager
that the claimant was accountable for reporting to her manager for outreach work including where, when and with whom she was undertaking this work
that the claimant must engage with the Project Co-Ordinator around the planning and direction of the work and what areas of work apply to the respondent’s centre
that the claimant must meet with the Project Co-Ordinator for support and supervision on dates given to the claimant
that the claimant would have to be accountable for correct recording of her petrol expenses and time in lieu and that any issues with them should be discussed with the Project Co-Ordinator at support and supervision.
This letter concluded by informing the claimant that her failure to comply with any of the above would be regarded as a disciplinary matter.
The claimant stated in evidence that she “felt back to square one” when she received this letter and she left the respondent’s premises that day as she disagreed with the contents of the letter. She also referred to the fact that it had been agreed that no one-to-one supervision with the Project Co-Ordinator would take place until after mediation had occurred.
The claimant subsequently tendered her resignation with immediate effect by letter dated 2nd June 2015 following a period of sick leave. It was the claimant’s evidence that she had been very ill and had attended her doctor on a number of occasions who advised her that it would not be good for her health to return to work. The claimant knew she would be supervised by the Project Co-Ordinator once again in the future but she was fearful of this unless mediation had occurred in the interim. The Project Manager in cross-examination stated that she was not made aware by the Board that the claimant had again made allegations of bullying in the meeting on the 14th April 2015.
The claimant gave evidence of her financial loss and efforts to mitigate that loss. A letter issued from the Board of Management on the 5th June 2015 accepting her resignation.
Determination:
Having fully weighed up the evidence in this matter and having considered all documents submitted by the parties and what was urged by their respective representatives, the Tribunal has concluded and finds as follows: -
- While there were shortcomings in the procedures adopted and followed by the respondent, the process was substantially fair and the claimant did get due procedure.
- The process in respect of the complaint against the claimant and in respect of the claimant’s grievance were brought to a conclusion with the outcome of the appeal which was conducted by an external party.
- It was common case both at the time, and before the Tribunal, that the relationship between the claimant and her immediate line manager needed to be repaired so that the bond of trust between them could be renewed and a proper working relationship could be achieved
- Efforts were made through unsuccessful mediation to resolve issues.
- The claimant requested a meeting which was held on the 14th April 2015 the principal purpose of which was to seek to establish a way forward in light of the unsuccessful mediation and to seek assurances that her ongoing concerns about the relationship with her line manager were being taken seriously.
- The Tribunal is of the view that the letter of the 16th April 2015 arising from that meeting was unbalanced and a completely inappropriate response to the concerns raised by the claimant on the 14th April 2015. Any reasonable employee would have concluded from that letter that her concerns around the working relationship with the line manager going forward were being ignored and that the respondent was not looking to proactively address the issue following the breakdown of the mediation process.
- The Tribunal is satisfied that the context and tone of the letter of the 16th April 2015 was such that a reasonable employee could conclude that there was no future for her working with the respondent and that resignation was the only viable option. The Tribunal also notes the readiness with which the claimant’s resignation was accepted.
Arising solely out of the manner in which the respondent dealt with the claimant following the breakdown of the three-way mediation meeting the Tribunal considers that it was a reasonable response on the part of the employee to resign and that the claimant was constructively dismissed. The Tribunal awards compensation in the sum of €5000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)