UD1212/2014

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1212/2014

APPEAL(S) OF:                                                                                              

Munster Insurance & Financial Limited

      - appellant                                          

against the recommendation of the Rights Commissioner in the case of:

Coleen O'Malley

- respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms P. Clancy

Members:     Mr T. Gill

                     Ms H. Henry

heard this appeal at Ennis on 2 December 2015 and 2 February 2016 and 3 February 2016.

Representation:

Appellant(s) :     Mr Kenneth Buchholtz, Campbell International, Cloncoul House, Ennistymon, Co Clare

Respondent(s) : Mr David O’Regan B.L instructed by Ms Lisa Ryan, O'Gorman, Solicitors, Munster House, 75a O'Connell Street, Limerick

This case came before the Tribunal by way the employer appealing against the recommendation of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 reference R-136984-UD-12/MH.

Appellant’s Case

The managing director (PMcN) of the appellant company gave evidence. The company operates two offices in Ennis and Kilrush. The business involves the sale and administration of insurance and has grown steadily since it was established in 2005. The witness described the nature of the business as a pressurised environment. All new entrants are inducted into the business by (PMcN). Employees undergo a four year training programme as required by Central Bank regulations. The workforce is predominately female therefore employees are regularly accommodated during pregnancy and maternity leave. The witness did not attend any meetings involving the respondent employee (COM) either on the 17 or 18 April 2013.

(COM) was employed for a probationary period as set out in her contract of employment. The witness accepted that being upset / crying or hyperventilating was not a “..serious breach of the terms or conditions of employment..”. He could not recall discussing (COM’s) case with (KQ). Extending (COM’s) probationary period was not considered.

The team leader, (LOS) gave evidence of (COM) joining her team in April 2013. (COM’s) previous team leader, (EM) had advised her that there were some behavioural issues to be aware of when training the employee. (LOS) paired (COM) with another member of the team, (S) and it was intended that (COM) would be a support to (S), however (S) was leaving the company. No specific targets had been set for (COM) as she was still undergoing training. On the 17 April 2013 (S) refused to continue working with (COM). An e-mail to that effect from (S) to (LOS) was opened to the Tribunal. (COM) was upset, crying and appeared to experience breathing problems. Both (LOS) and (KQ) tried to calm (COM) and sent her home that day. When (COM) returned to work on the 18 April (LOS) met with her and was accompanied by (KQ). No decision was made as the purpose of the meeting was to discuss the incident of the previous day. (KQ) informed (COM) that her employment was ending. (LOS) accompanied the employee to her office where (COM) had left her belongings. She accompanied (COM) out a side door. (COM) said “keep my pregnancy news quiet”. This was the first time the witness became aware of (COM’s) pregnancy.

The witness could not recall receiving a communication from (COM) seeking advice on the morning of the 17 April. The witness accepted that being upset and crying in the workplace was not a reason to dismiss an employee and added that the dismissal was as a result of how (COM) had behaved towards (S). While attempting to calm (COM) down on the 17 April the witness stated that she did not hear (CO’M) say she was pregnant. She also stated that she did not hear any word that she could not understand. Had the witness known that the employee was pregnant it would have been discussed.

(COM’s) first team leader (EM) gave evidence. (COM) was assigned to her team in January 2013. There were no issues with (CO’M’s) work and her training was progressing well. On occasion (COM) had displayed aggressive or intimidating behaviour. An issue arose on the 8 March 2013 whereby (COM) was giving out about her workload. (COM) displayed signs of stress and was agitated. (EM) encouraged (COM) to stay calm and to avoid getting stressed. (EM) spoke to (COM) about her behaviour informally on the 11 March and (COM), by way of explanation stated that it was out of character for her to behave in such a manner. A notable improvement in her behaviour followed and (COM) was moved to the next level which was the renewals section and assigned to (LO’S). (EM) had no knowledge of (COM’s) pregnancy. The witness agreed that informing your employer of pregnancy at three months was acceptable.

(AM) gave evidence that she assists team leaders and trains new entrants, she has trained over 40 new entrants including (COM). She worked with (COM) on a daily basis and described her as difficult, and uneasy to work with. She, (COM) got frustrated and regularly “tuts” if she was asked to carry out a task. The witness described in detail to the Tribunal the events of 8 March 2013. She explained to (COM) on three occasions the procedure for processing a payment. (COM) got frustrated at being unable to complete the process and got upset, starting to cry. The witness told the Tribunal that (COM) never mentioned to her that she was pregnant. She told the Tribunal that there is always somebody pregnant within their predominantly female workforce and the company has always accommodated those employees. There has never been any issue with the company in that regard. She accepted that she did not make any complaint in writing concerning (COM’s) behaviour but she spoke to her team leader, (EM) about it.

(MM) gave evidence that she worked in the same room as (COM). She was present on 17 April 2013 when an incident occurred between (COM) and another employee known as (S). The witness described (S) as a brilliant trainer and who was training (COM) at the time. She told the Tribunal that (S) was helping (COM) with a payment and (COM) started to get angry. (COM) then stormed out of the room and went to the bathroom. The witness then heard banging from the bathroom and when (COM) returned to the room she was upset, shaking and hyperventilating. She did not speak. (KQ) and (LOS) then arrived in the room and subsequently accompanied (COM) to the boardroom. The witness gave further evidence that (COM) had not calmed down and was still hyperventilating when she went with (KQ) and (LOS) to the boardroom. She told the Tribunal that (COM) never told her that she was pregnant.

(OH) gave evidence that she has worked in every department with the appellant company since 2006 and continues to work for the company. She was four months pregnant when she was hired and the company were aware of that when they hired her. The company was very supportive towards her, there were no issues, and no negative feelings towards her. She gave further evidence that her daughter had to attend hospital on various occasions and the company was very understanding and supportive in that regard.

(KQ), personal lines business manager gave evidence that five team leaders report to her. She has been employed by the company for 11 years and she interviewed and hired (COM) who was employed, as per her contract of employment, subject to a probationary period of six months. She told the Tribunal that while (COM) performed fine in her work duties, her behaviour was flagging from the outset of her employment. She became aware that (COM) was upset at her desk on 8 March 2013. She spoke with her on that occasion and enquired if she was okay and (COM) told her that she was fine. She spoke with her again towards the end of March 2013 as (COM) was moving to the next stage of her training, on renewal payments. She told her that the role in renewal payments was full-time. She did not tell her that it was full-time and permanent as (COM) was still within her probationary period.

On 17 April 2013 she was told that (COM) was having a panic attack. She and (LOS) approached (COM) and tried to speak with her. (COM) was extremely upset, shaking and crying. The witness described her as being hyperventilating. She tried to calm her, brought her some water and subsequently moved her to the boardroom. She stayed in the boardroom with her along with (LOS) for 20/30 mins and (COM) was extremely upset. She told the Tribunal that (COM) was unable to speak during this time in the boardroom. She did not say that she was pregnant. If she had done so she, (the witness) would have congratulated her. No conversation took place in the boardroom and she, (the witness) did not question her at all as the she, (COM) was upset. After a period of time in the boardroom she asked (COM) if she was okay to go home and (COM) was happy to do that. She told her that she would speak with her on the following day. (LOS) then accompanied her to the door.

The following day, 18 April 2013 she and (LOS) met with (COM) to discuss the issue of the previous day. She told the Tribunal that (COM) was very defensive and abrupt. She stated that she had done nothing wrong and said that it was the fault of (S). She stated that (S) was trying to blame her for something she had not done. The witness also raised the matter of the incident of 8 March 2013 and (COM) denied that she had been spoken to about her behaviour at that time. She did not complain about her training and did not raise any grievance. She never mentioned that she was pregnant during the course of the meeting. The witness then decided that she would end (COM’s) employment immediately, on the grounds that her behaviour was unacceptable. She told her that her behaviour meant that she might not be suitable to the industry. She informed (COM) of her decision. She made her decision to terminate her employment while (COM) was within her probationary period, and unaware that she was pregnant. She had been given no indication that (COM) was pregnant. She issued a letter dated 19 April 2013 to (COM) confirming the termination of her employment for behavioural reasons.

She gave further evidence that, following her dismissal, (LOS) accompanied (COM) to the door. (LOS) then returned and told the witness that (COM) had told her to keep the news of her pregnancy quiet. This was the first occasion that the witness heard of the (COM’s) pregnancy. This was after her dismissal and the witness told the Tribunal that if she had been aware of this beforehand, a different conversation would have been had.

Respondent’s Case

The respondent employee gave evidence that she commenced working for the appellant company on 7 January 2013. She was on probation for six months. She worked initially on new business. On Friday, 8 March 2013 she was processing payments and had a number of payments to complete by evening time. (AM) then asked her to process an ARB policy but she (the witness) did not feel competent to process the policy. She told (AM) that she would try and process it but even though (AM) explained how to process it on three occasions she still did not quite understand the procedure. She accepted that she became frustrated and upset at not being able to process the payment but denied that she “tut tutted” or intimidated anybody. She remained in control of herself. She was given assistance by another colleague and the task was completed. She described the incident as “something out of nothing” and does not recall (KQ) speaking with her on that day.

On Monday 11 March 2013 (EM) did speak with her in relation to the matter and she told her that she had become upset and frustrated at not being able to process the payment. She apologised to (EM) for becoming upset and was embarrassed for crying in the office. She told the Tribunal that (EM) said that everything was okay and nothing more was said about her behaviour. She denied that (EM) issued her with a verbal warning. (EM) told her that she was competent at her job and she was not told that a note was being put on her file.

She gave further evidence that (KQ) informed her on 28 March 2013 that she was being moved to a full time permanent position in renewals. She moved to renewals and was trained by (S) whom she described as a lovely girl and extremely knowledgeable. However (S) was due to leave the company in early April. She (the witness) was pregnant at this stage and was feeling very tired but she had not informed anybody at work that she was pregnant at this stage. She wanted to wait until her pregnancy had progressed to a safe stage.

She gave evidence, that on 17 April 2013 she was processing a transfer payment on her computer and her computer screen froze. She was unsure how to proceed and sought assistance from (S) who came to her assistance. She explained to (S) that she was very sorry and then she became upset. She was mad at herself but was not obnoxious towards (S). She went to the bathroom and accepted that she could have banged the bathroom door, but she was not hyperventilating, shaking or crying. She returned to her desk for a period and telephoned (LOS). She told her that she was not competent enough on payments and believed that she had been ”thrown in at the deep end”. She did not feel as though she had received enough training. She started to cry and her breathing became laboured. (LOS) and (KQ) then arrived in the room and she (the witness) requested that they go to the boardroom. She told the Tribunal that when they went to the boardroom she had calmed down considerably and (KQ) began to question her, asking her what all this was about. The witness said she replied that she was pregnant. She wanted them to understand the underlying reason for her behaviour. She was then told to go home and go to bed or to the doctor. (LOS) then accompanied her to the side door and she went home.

The following day, 18 April 2013 she reported for work and was working at her desk. She subsequently had a meeting with (KQ) and (LOS) and she was asked for an explanation of the incident of the previous day. She admitted that the matter with her computer was her own fault and she was in no way blaming (S). She also explained the incident of 8 March 2013. She told the Tribunal that (KQ) then said that she was being dismissed for behavioural reasons. (KQ) told her that several people had approached her, (KQ), regarding her behaviour at work. She (the witness) said she was not given the opportunity to state her case or to state that she was pregnant. She was escorted to the door by (LOS) and she told (LOS) not to tell anybody about what she had said on the previous day. (LOS) replied “what was that” and she (the witness) replied, “that I am pregnant”. (LOS) replied that neither she nor (KQ) had heard her say so on the previous day.

She gave further detailed evidence to the Tribunal of her efforts to mitigate her loss since her dismissal.

Determination

The Tribunal carefully considered the significant oral evidence, and also, the documentary evidence and submissions made by both parties.

The Tribunal notes the claimant’s employment was terminated at week 14 during her probation period of six months, and that notes the claimant admits she did not formally notify her employer of her pregnancy. Significant oral evidence was adduced detailing issues with the claimant’s conduct at work, and in particular, her conduct on the 17^th April, 2013. The claimant accepted there had been difficulties with her work, and that she had been upset and crying, and also, had apologised for her behaviour, and she admitted she was not competent to do the job assigned to her.

The Tribunal notes there was conflict of evidence between the claimant, and the seven witnesses for the respondent, and in particular, in relation to whether the claimant had notified her employer of her pregnancy, either formally, or informally. The Tribunal also notes the respondent’s evidence that it has a predominantly female workforce, and there is usually at least one employee pregnant at any one time, and one witness stated she had been pregnant when she interviewed for her job, and that the respondent was very supportive to all workers going through pregnancy.

The Tribunal accepts that the claimant was ordinarily entitled to dismiss within the probationary period, in particular, where it was not on notice of the claimant’s pregnancy. On this issue, the Tribunal prefers the respondents’ evidence and is not satisfied that the respondent was made so aware.

The claimant could not explain why, or on what grounds she was singled out for dismissal, and did not give any direct evidence of a belief that she was dismissed because of her pregnancy, this belief was only elicited on later questioning by the Tribunal. The claimant admits she did not follow the respondent’s stated appeals procedure as contained in their employee handbook, and no internal appeal to the respondent’s decision to dismiss was lodged.

As the Tribunal finds that the respondent was not made aware, by the claimant, either formally or informally, of the fact of her pregnancy, the Tribunal do not find the claimant’s dismissal to be unfair, and so her claim must fail.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)