EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1645/2014
UD1606/2014
MN794/14
WT267/2014
WT261/14
CLAIM OF:
Andreea Iablonschi – claimant 1
&
Radu Iablonschi – claimant2
Against
The Knockmaroon Estates Company – respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS 1973 TO 2005
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes B.L.
Members: Mr R. Murphy
Mr S. O'Donnell
heard this claim at Dublin on 5th January 2016, 22nd March 2016, 23rd March 2016 and 16th May 2016
Representation:
_______________
Claimant: Mr Sean Mahon, Mahon & Sweeney, Solicitors, Main Street, Roscommon, Co Roscommon
Respondent: Mr Seamus Clarke B.L. instructed by Mr Barry O'Donoghue, Ferrys, Solicitors, Inn Chambers, 15 Upper Ormond Quay, Dublin 7
Cases K 61428 and 61503 were heard in conjunction with each other. The claimants RI and AI (a married couple) commenced employment on 1st January 2010 and dismissal was in dispute. The respondent company is operated by a husband and wife team.
Claimant’s case:
RI was employed as a caretaker and his wife AI a cleaner with the respondent (a large estate house and lands) following a successful interview on 1st January 2010. They occupied the basement of the house. No written contract of employment was ever put in place. RI told the Tribunal that he was in charge of animals, dogs, fowl, stables, the swimming pool, tennis courts, grass cutting and other general maintenance and upkeep. He initially was working a five-day week but then was expected to work every day. His weekends were for feeding the animals only but he said there was always something else to be done. He said that initially he was eager to make the family happy but the chores kept increasing.
He gave evidence of events held at the house such as book launches, birthday parties, family gatherings and entertaining around a festival organised by VG. The house was also very busy during Horse Show week. A large amount of organising and checking that to be done, even down to the recycling of the rubbish and making sure it was in the correct bin. They found themselves responsible for security and had to seek permission if leaving the location and RI said they had no time left for their own lives, no outside connection whatsoever and not even Christmas to themselves.
He said that there was a lot of pressure in May-June 2014. VG was often trying to get hold of KG who wasn’t answering his phone. She used to get RI to phone as KG would take his calls. He felt himself caught in the middle. VG would complain that the claimants were not flexible enough and things came to a head when AI wife of RI told her that she was pregnant. He said that she was furious that RI attended the first scan rather than work. He said that over the years she frequently threatened to replace them with another couple when she was annoyed.
AI came to her husband in tears on 30th September saying that VG had shouted at her and made her feel worthless even though she was giving her all. RI immediately texted VG and told her that if she wanted 24 hour attention she should get more staff. LG (VG’s son) then came out to them and told them that if they didn’t like how things were to “f…off”.
RI then told VG they would take the rest of the day off to let things cool down. She told them that if they took the day off “not to come back and to vacate the basement”. RI telephoned KG who told him not to worry, when he got back he would sort things out. RI took his wife to the doctor and she was diagnosed with work-related stress and anxiety. The doctor advised that she should only return to work after her maternity leave. He later took the sick certificate to VG and was again told to vacate the basement, that another couple would need it, he was also told to “f…off again by LG.
RI then received an email from VG saying “that it was with regret that we will have to accepted your resignation”. He replied saying “we don’t want to quit unless you want us to” and outlined reasons for the tears and upset of earlier. He asked for a meeting. RI told the Tribunal that at no time did they offer to resign, they were living in the basement, had no car and nowhere to go. A meeting was arranged with KG on 10th October. They did not resign. He said that KG’s email on 16th October was hypocritical. Their pay stopped on 17th October. KG told them to take their time about moving out but VG kept hassling them to go.
Under cross examination RI agreed that the job was as caretaker of the house in which the family were irregularly in residence and that, as such, the job needed flexibility, work would change depending on how many people were staying and that relations between the parties had been good for a considerable period of time. They were left to their own devices if there was nobody in the house but said that there was always a huge amount of work regardless.
AI gave evidence of getting the job of what she thought cleaner. She then became cook, dealt with laundry (from Mullingar house as well, even though she had to hide it from VG) did the shopping as needed and looked after guests as they arrived. She worked the Hunt Ball, birthdays, Christmas, book festivals and got nothing extra for any of it, not even days off. Her days off were Sunday and Monday and after her return from a holiday break that was Wednesday to Wednesday she was told by VG that she had to work the full weekend, she didn’t care if she was pregnant or not and was needed at weekends. AI said she was shocked, she was already working Saturdays and now was required on Sundays.
AI said VG went off on a monologue when she disagreed with working the full weekend she told her that people were unhappy with her, go to her hospital appointments on her days off, why go anyway – there’s nothing they do for you, women in Africa have their babies from the fields. AI said she became very upset VG was shouting and she was crying her eyes out, she didn’t even know what else VG had said but she thought something about the fact that she needed people she could rely on and would be there when she needed them.
AI went to her husband in tears and he then sent the text message to VG. She later went to the doctor and never spoke directly with VG again, she was even afraid to bring the medical certificate to her so her husband did it. She told the Tribunal that she would be on sick leave, the respondent needed a couple to manage the place so that was it for them. She also stated that they never resigned their positions.
Asked if RI went to the estate manager’s office on that day AI said “no. ” They did write a letter when they were looking for a house. Asked when she was asked to move out of the basement she said it was when her husband gave the sick certificate to VG and it was made clear that they were definitely fired at the October meeting with KG and VG. The respondents couldn’t understand how AI would be off on maternity leave for over 6 months, they said it wouldn’t work. When pointed out that RI was not the one pregnant they said they “needed a couple”.
She said that at the meeting on 10th October both KG and VG suggested that she not take maternity leave. She said that they said that they did not need sick people but rather needed a couple working for them.
Respondent’s case:
KG told the Tribunal that he normally lived in Mullingar but he made brief but regular visits to the Castleknock residence. He was happy with the claimants and as far as he was concerned everything worked well. They made it clear they wanted privacy and they never complained about anything ever. He disputed the amount of work that was outlined by the claimants as part of their duties. It was RI’s suggestion that he work for four days each week and that on the other three days his only duties were to feed the dogs and chickens. In respect of public holidays when the claimants worked, he said that he always expected them to take the requisite days off in lieu and always told them to do so.
Some time at the end of September KG said he must have had a phone call from VG or their son LG to say there was a row. He received an e-mail from the claimants asking whether their services were still required on the same day but tried to pour cold water on things and let it all settle down.
He came up to Castleknock on 10th October following a text from RI saying “do you still want me?” He thought he could try to put things right, he didn’t want to sack them (and knew he couldn’t anyway). AI said almost nothing at the meeting, she was still upset. It was for her to say if she could or couldn’t work but the position was for two people, they had been taken on as a couple and KG couldn’t see how he could make things work. He said that everyone was excited about the baby. He said that they knew that the situation would become very different once the baby arrived but that he and VG were happy to see how it could work. He recalls that there was mention of RI’s mother coming to help.
KG sent an email a propos the meeting to RI on 16th October 2014 in the following terms:
“…We note that [RI] had thought that [VG] had criticised [AI] on several occasions but [VG] explained that at no stage had she meant to criticise [AI] but was only suggesting that you might both work occasional weekends when we had guests and then take days off during the week instead. As you are aware we have operated like this in the past without a problem so [VG] did not think that it would cause any difficulties. [VG] also suggested getting a cleaner to help [AI] but this was not in any way intended as a criticism but a genuine attempt to lighten [AI]’s workload. When [RI] stated that [VG] had thrown him out of the house she explained that she had not done so but had asked him to go downstairs as she found his behaviour frightening. [RI] will recall that [LG] had felt it necessary to intervene. They certainly did not want you to leave the house but to return downstairs to bring an end to the situation that had developed. We pointed out that we had always supported you both and will continue to do so. We very much value the work you have done for us here and are saddened that you wish to leave and can only hope that you reconsider your decision.”
He was still hoping that the situation would resolve itself and that they would reconsider.
He received a reply the following day from RI in the following terms:
“Thank you for explaining your view over the undesired situation we are in. To understand exactly and have no doubts we will once more make a summary of the events which recently occurred. On the beginning of September, just before our holidays, [VG] said a lot of things to us and made us feel very bad about who we are and how our work is being carried out (not the only time). She apologised and we had a chat. Thanks for our willing to understand and our willing to put everything back on track, myself and [AI] accepted [VG]’s apologies and continued to do our work as best as possible. When we got back from our holidays (if you can call it a holiday because [VG] insisted to do the the groceries and other stuff for her and her guests while we were off) she complained about how we are not flexible enough, about how we never work when she needs us, about the fact that the entire family complained about the work [AI] and I are carrying out, about the fact that we took the following weekend off etc etc etc. [AI] got upset knowing that we always been there when you needed us. I sent a very clear text message addressed to [VG] quote: ‘If my wife is going to cry again because of you we will quit our jobs. Get more staff if you require 24 hour attention.’ I continued cutting the grass when [LG] came in to the garden and made me feel like I was a criminal of some sort, cursing, using very bad language to which I didn’t reply in the same manner out of respect for myself. Eventually he said quote: ‘Go f… yourselves if you are not happy.’ At this point [AI] was sick with the distress and I came upstairs and told [VG] that we are ‘pulling a sickie’ for that day. It was the only way to let things calm down a bit. She reply never to come back and I said fine. Never in my entire life been a threatening person, never in my entire life showed disrespect to an older man or woman. I have a clear set of moral values which I guide my life after. Anyone who knows me will know that I can never be threatening to anybody. Next day [AI] continued to feel sick so she went to the gp. The doctor concluded that herself and the baby are in danger if she continued working. I gave the medical report to [VG]. She and [LG] were both laughing saying quote ‘Another one unfit for work?’ Next they said we have to move from the basement immediately. Again [LG] said quote ‘[f…] off.’ After all this I was the one who tried to make things better apologising to [VG] (I don’t really know why or what for). I continued offering my services and [AI] said clearly she was happy enough to get back to work when maternity leave was finished. You and [VG] decided that it is not going to work. We greatly respect you and [VG] both as our employers and as people no matter what the future holds for us.”
He received a telephone call from RI on 9th September 2015 in which RI asked if the whole thing could not be looked at as a misunderstanding. A meeting was arranged, although by that stage another couple had been employed. He said that he felt that he was being put under pressure at the meeting. He said that it was mentioned by the claimants that they could sell family information to the newspapers. He thought this improper.
In cross-examination he said that there was a difference of opinion between the parties as to the amount of work required and that the claimants were allowed work at their own pace. The system of RI working four days and only feeding the animals on the other three days was suggested by RI because neither he nor AI liked having the man who otherwise filled in on their days off about the place. He did not want the claimants to quit and it was never his understanding that VG had told them to leave the house. He said that the meeting on the 10th October 2014 was about trying to see how the new situation could be made to work. They did need a couple to do the job but he did not accept that the only way to resolve that problem was to fire the claimants. He knew that AI would be on maternity leave and he had hoped that she would be back working thereafter. That therefore left them with a period to bridge and they had to figure out how to bridge that period in her absence.
VG gave evidence that AI’s duties had always involved cleaning, shopping, laundry and occasional cooking. She prepared and froze some meals in advance for social occasions. When she commenced the employment she was 20/21 years old and was inexperienced but developed a few dishes and cakes that she could prepare. They got on well together. AI always finished work at 5.30pm except perhaps approaching the weekend of a festival organised by VG. Any extra hours worked were taken as time in lieu. In 2013 VG had moved back to England and only returned for family occasions and events. In September 2014 she told AI & RI that she was returning to live in Castleknock. In mid-September 2014 the claimants were on holidays in KG & VG’s holiday home in Donegal with the use of KG & VG’s car. VG was due to return from Japan and emailed AI to ask if they were going to the shop to get her some groceries.
She was happy about A’s pregnancy news. There was talk of either AI or RI’s mothers coming to fill in for AI when she had the baby. She had made arrangements to have the downstairs kitchen carpeted so that the baby could more easily crawl around.
VG said that she was concerned because AI seemed to be very anxious and when she made the comment about Africa she was trying to explain to her that she needed to remain calm by explaining that pregnancy was a natural thing and that women in Africa had babies without difficulty. She had grown up in Africa where her father was an obstetrician. She was concerned as AI had mentioned paying for private scans and VG was concerned there was a problem with the baby. She realised that AI had misunderstood what VG was trying to say and immediately went to RI to resolve the situation. But this was the only misunderstanding that she was aware of.
VG was unwell and tired on her return from Japan. Family members were also visiting that weekend. On 30th September 2014 it VG asked AI if she would work over the weekend if she had been away on holiday and guests were coming to stay and that she could take time off later in the week. This would have been helpful over the weekend while she had guests. She said this to AI while AI was doing dishes in the kitchen. AI said that she would be tired and did not want to do that. VG was coughing and AI said abruptly ‘don’t come near me’. VG took this to mean that AI did not want to catch germs as she was pregnant. VG left and felt upset by the interaction.
She then received a text message from RI at around 10am which stated:
“if my wife is going to cry again because of you we will quit our job. Get more staff if you require 24 hour attention.”
She did not understand the reference to making AI cry as she had not been noticeably upset in any way when VG left the kitchen. She showed the text message to her son LG who then went looking for RI. LG returned from talking to RI and she understood that there had been an argument. LG said he thought that the claimants were leaving. RI came to the upstairs kitchen and said that AI would not work for her anymore and that they were both ‘pulling a sickie’. VG said ‘if you are both pulling a sickie I’ll take it you really want to leave’. VG described RI as being intimidating during this exchange. He was shouting at her. AI was calling to him from the basement to come back downstairs. When she asked him to leave she meant that he should leave the kitchen. No one told them to leave the house where they remained until 17th October 2014.
On 30th September VG received an email from RI at 11.19am which stated:
“Me and [AI] are sick today therefore we will not attend work. Hopefully we will be better tomorrow. Thank (sic) for the understanding”.
VG emailed the claimants at 11.34am saying:
“Dear [AI] and [RI], It is very sad to learn you are no longer enjoying your job here. With much regret we will have to accept your resignation. I have an important phone meeting at 12.00, but I gather you have decided to take today off so won’t be in the kitchen in any case.”
The claimants replied at 12.37pm in the following terms:
“From our earlier conversation we gathered that nobody in the family is happy with our work. We don’t want to quit unless you want us to. Everybody has weekends, holidays, days off etc. Nobody should cry at their workplace because of their employer. We always changed our days off to suit family’s needs, we always worked long hours when needed, we never said no to any of your requests, we never had a Christmas of our own, we always tried to do our jobs as best we could. Having said that, it’s a pity to hear that we never been flexible enough…. If you think that our services are no longer required, we’ll step back. At the same time if you decide to keep us we’ll have to have a meeting.”
VG went to London but was back on the 2nd October. RI gave her a sick certificate for AI when she returned.
LG remained in Castleknock for the next couple of weeks. VG felt more comfortable with someone in the house with her.
A meeting was arranged for 8th October but the claimants did not attend. The following day VG sent an email to AI in the following terms:
“We were very sad to learn from [RI] that you no longer want to work here…. We were hoping to meet you yesterday at 5.00 as arranged, but [KG] had to leave eventually, as you were not here. Can we arrange to meet tomorrow to talk about how you might like to continue here? [KG] is suggesting about 12.30. Would that suit you? Hope you are feeling better.”
AI replied:
“I never said I don’t want to work here anymore. The only issue I had was about working… under these circumstances (constantly hearing complaints). As far as I’m concerned, I never let the family down. I always did my best to make everyone happy. To hear now that I was never flexible enough was a bit much for me to take. I’m very disappointed that after the first ‘no’ I ever said to you in 5 years, we ended up being thrown out of the place we are living in. I’m not sure if I want to take that risk again. Unfortunately the pressure I was under made me end up being too anxious to work. The medical certificate I have is the doctor’s solution to protect my wellbeing. I’m currently under doctor’s supervision and it’s not up to me when I will get back to work. Probably the soonest I will be able to get back to work again will be next year some time after I am giving birth. I cannot express my sadness that after 5 years of service we ended up in this situation. Although I don’t know what more I could say, we will attend the meeting tomorrow at 12.30.”
The meeting was held on 10th October 2014 to establish if the claimants wanted to continue working. VG did not understand AI’s accusation of constant complaints. They occasionally asked them to work weekends and had one conversation about being flexible, which conversation had not been a complaint. AI said she would work sometime the following year after she’d had her baby. No specific date was mentioned. She did not appear to want to climb down from that position. Although AI had changed her stated position of never wanting to work for VG again. There was no talk of early maternity leave. The baby was due in March 2015 so she knew that there was still plenty of time in which to discuss maternity leave. They did not receive a letter seeking early maternity leave. She certainly never said to them to never come back.
On 24th October RI asked to borrow her car to which she readily agreed, which she would not have done had they no longer been working for them.
Nearly a year later RI contacted VG & KG about coming back to work. They had a meeting VG & KG explained that they had another couple but they could find some work for them. However RI kept asking to be paid for the year they had not worked and then said about going to the press.
In cross-examination she was asked why she had accepted the email from the 30th September as a resignation and she explained that she had been told that AI no longer wanted to work for her and that when RI was shouting at her and then talking about pulling a sickie and at that point she said that if they were both pulling a sickie that she would take it that they were leaving. She suggested also that problems began to arise when she announced her intention to resume living in the house full-time and that this arrangement did not suit the claimants.
LG gave evidence that he was visiting for the weekend when his mother came to him and showed him a text message from RI. He went to find RI and found him sitting on the lawnmower talking to AI, who looked upset. He asked RI what the text was about. He was animated about the situation and RI was quickly off the lawnmower in an aggressive manner. They argued. He described it as ‘two friends going at it’. He was defending his mother and RI was defending his wife. It was their first argument and he regretted it a bit. AI said ‘we will not work here anymore and we will leave’. After LG had gone back to the house, RI came to the upstairs kitchen and told VG they were ‘pulling a sickie’. The conversation got heated to the point of being aggressive. He told RI to go downstairs. AI was calling him. It was horrible to see his mother being shouted at like that. He did not tell RI to leave the building, but to leave the kitchen. He did not see them for the rest of the day. He was present when RI gave VG a sick certificate for AI. There was an undertone of aggression – though he said this was not the right word. He could not recall any laughter. He denied saying ‘another one unfit for work’, telling them to ‘f… off’ or telling them to leave the basement. LG stayed for approximately another week as it was unpleasant for his mother to be alone while RI was behaving in an unpleasant manner.
The farm office administrator, VM, gave evidence that on the 30th September she was handed a note by RI in which a series of requests were made in preparation for them leaving. She noted in the office diary that RI said they were leaving in two weeks. In cross-examination she was shown a photograph in which it appeared that the note in question was still in RI’s possession on the 11th October 2014. She maintained that the note was given to her as recorded in the diary.
The farm manager, TM, gave evidence that the claimants would inform him when they were leaving the estate if no-one else was present. They were not seeking his permission to leave but were informing him so that he could know to look after the place in their absence.
Determination
In any claim for unfair dismissal it is an obvious prerequisite that there be a dismissal. In any case where the fact of dismissal is not admitted by the employer, the onus of proving that one took place rests with the employee. That is the situation here. It is not at all clear that there was a dismissal. This is not a case of constructive dismissal in which it is being suggested that the claimants were obliged in some way to leave their employment. All of the evidence points towards a misunderstanding between the parties. At each stage the claimants are indicating their unhappiness with their situation and stating that they are being told to go whereas the respondents with every reply are telling them that they want them to stay and that they want to see how they can sort things out.
With regard to the list given to VM, even if it was only drawn up on the 11th October, it still evinces an intention to leave before the final meeting with KG on 13th October and the final exchange of emails on the 16th and 17th October.
There was a question of a couple being required to do the job. It is clear that they were employed as a couple. It is also clear that a couple was engaged to replace them. However, the Tribunal is satisfied that KG and VG, in the shoes of the respondent, saw this as a difficulty that had to be worked out but that the resolution of the difficulty was not a dismissal of the claimants.
There was a conflict in the evidence about the amount of work that was required from the claimants, which conflict does not have to be resolved. It is noteworthy though that the claimants complained of working seven day weeks with no days off but that in their email dated 30th September, they protested that they had always changed their days off to suit the family’s needs. The clear implication is that they did have days off.
In respect of the claim under the Unfair Dismissals Acts, 1977 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005, the Tribunal is not satisfied that the claimants have discharged their onus of proof in relation to the fact of dismissal. Therefore, these claims must fail and are accordingly dismissed.
There was also a claim under the Organisation of Working Time Act, 1997. Insofar as the claim related to annual leave, the Tribunal is satisfied that they had had at least four weeks of annual leave in the previous six months and that no loss arises in that context. Insofar as the claim was framed in the claim form as relating to having worked every Christmas period, this claim was submitted on 5th November 2014 and is therefore out of time with regards to Christmas periods. The evidence was that they had worked some public holidays. The Tribunal was told on behalf of the respondent that the claimants had had days off in lieu when they had worked on public holidays. The Tribunal accepts that they were told to take days off in lieu and that it was the firm intention of their employer that they do so. However, their employer ought to have ensured that the days in lieu were actually taken. There was no evidence that days had been taken in lieu. The Tribunal is satisfied that the claimants, within the time period for claim had worked on two public holidays and awards each of them compensation in the amount of €165.00 under the said Act.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)