EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD325/2015
CLAIM OF:
Caitriona McMahon
- claimant
Against
S.P. Sports (Management) Limited, (In Liquidation)
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr D. Hegarty
Mr J. Flavin
heard this claim at Limerick on 14th April 2016 and 28th June 2016.
Representation:
Claimant: Mr. Enda O’Connor, O’Connor O'Dea Solicitors, 40 South Quay, Newcastle, Co. Limerick
Respondent: Mr. Camillus Muldowney
Background
On the first day of hearing it was established who the correct respondent is. The claimant worked in a leisure centre. The building where it is housed is owned by Limerick County Council. They appointed the respondent as the “Managing Contractor” of the Leisure Centre. The respondent employed the claimant from the 3rd of August 2007 to the 28th of November 2014. This case is one of Constructive Dismissal.
Claimant’s Case
The claimant commenced employment as the duty manager. She was promoted to General Manager in 2008. Her employment proceeded as normal until 2 changes occurred in her employment. The Directorship of her employer company changed from the owner to his daughter and Limerick County Council took over the financial management of the leisure centre. Previously all accounts, budgets and invoices were managed by the respondent, but as the figures conflicted with Limerick County Councils figures, they took over the financial management of the centre.
This left the claimant in the position where she was answerable to both the respondent and Limerick CoCo. Her new manager SM gave the claimant the responsibility of providing all the information required to the Council as well as running the Leisure Centre while having her hours reduced. In the summer of 2011 all expenditure stopped in the leisure centre and all hours were reduced. The claimant highlighted her concerns regarding safety and workload to SM in an email and the response was that if she did not comply it would be her fault that the centre closed.
As the hours were reduced there were less people to supervise the pool. Out of 35 management hours the claimant spent 30 hours at reception and was very concerned that something would happen in the pool. She highlighted the concerns and as a result swimming lessons were cancelled; this was safer but did nothing to ease the claimant’s workload. The claimant also spent 60-80 hrs responding to requests for information from both the respondent and the council. The claimant was informed that the manager in another leisure centre the respondent operated was capable of the workload on reduced hours; that manager only had to do it for 3 months, not the indefinite duration the claimant was doing it and did not have the extra Council obligations. SM also said that the reason the other managers in other sites did not work late nights and weekends is ‘because they have good reason, they’re married with kids.’
SM asked the staff for a wish list after all the hours had been reduced. The claimant returned from annual leave to be informed that an ‘anonymous’ email of complaint about her came from the staff as a result of the wish list request; it took 2 years for the claimant to be shown this email. The claimant arranged a meeting with the staff as she had a great relationship with them all and wanted to sort out any problems. All staff said they didn’t know what she was referring to as they had not sent any email. SM was very angry when the claimant told her she had spoken to the staff. SM informed the claimant that she did not trust her. SM then asked the claimant to an investigation meeting for ‘poor work performance’ as a result of the staff wish list but the complaint email would not be investigated as the claimant had not seen it. The claimant got a verbal warning as a result of this investigation and was put on a performance improvement plan; she was warned that if there was no improvement there would be further disciplinary action.
The claimant was extremely anxious and stressed at this point. She was getting 5-6 phone calls an hour looking for various reports from both sides. The respondent and Limerick CoCo were in conflict. The claimant was receiving emails sometimes at midnight. The claimant had to attend constant meetings but SM would not give her the agenda in advance or any time to prepare but put her on the spot at the meetings with questions knowing she couldn’t answer them. SM commented that she wasn’t sure the claimant could add and the constant demeaning commentary led to the claimant taking up to 15 minutes to respond to an email as she no longer trusted herself. The claimant was in a state of constant panic. SM was trying to make the claimant’s life unbearable.
The leisure centre is built on a flood plain. There are flood barriers in place that are raised in the event that 3 things occur at once; a South-West wind, full moon and an extremely high tide. On a particular occasion the water came up through the pipes in the plant room which had huge problems; this would happen regularly. The claimant did not raise the flood barriers as the 3 things necessary did not occur. Although the claimant proved the conditions were not right for the barriers to be raised she received a final warning to be on record for 2 years and she was suspended. It transpired that the water was coming from a leaking pipe. When the claimant appealed this decision to the regional manager he told her, “if I was you I’d resign.” The suspension was then lifted.
There was an issue with membership discounts that came up in a meeting. The claimant had been instructed by SM not to speak at meetings and to wait until later. After the meeting the claimant explained the discount system at which point SM got really angry, shouted and kicked boxes around the room. The other Director (R) was there, she was promoted from being the owners PA when the Directorship changed to the owner’s daughter. The discount issue was investigated by R and then SM heard the appeal of the decision. The claimant was given a written warning. The claimant got an email that evening to say SM was withdrawing from the disciplinary process and later “as a good will gesture” the written warning was being removed from her record. Two weeks later R asked the claimant to apply the same discount that she had just been disciplined for applying.
The claimant raised a grievance but the investigation into her complaints against SM were heard by her Father the owner and then SM’s Mother and Father at a second meeting. They then withdrew from the process and appointed an independent investigator.
A medical report was submitted to the Tribunal outlining the severe impact the respondent’s actions had on the claimant. The claimant has not been fit for work since she resigned from her employment.
Respondent’s Case
The owner of the Respondent apologised for any distress caused to the claimant. He denies the allegations of Bullying and Harassment and maintains it was a case of the employment relationship deteriorating over the years.
Determination
Having regard to all the events the Tribunal feel that the conduct of the respondent was such that it justified the claimant’s decision to regard herself as Constructively Dismissed as defined in the Unfair Dismissals Acts:
“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so—
(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”
The claimant by her own uncontested evidence was subjected to unjustified and severe pressure at work, intolerable deadlines and demands were placed on her which she was incapable of meeting. By virtue of these pressures she was unable to perform the functions of a manager. There was no evidence that her employer realistically intended to listen to her concerns over her conditions of work or address them.
The lack of an effective grievance procedure allowed the situation to worsen for the claimant. The reporting of an ‘anonymous email’ exasperated matters further and highlights the systemic disregard for the claimant and her position. Despite reference to a grievance meeting an express grievance or Bullying and Harassment policy was not in place and in the absence of that, it left the claimant unaware of how to proceed. What little investigation of the claimant’s grievance did take place was ultimately ineffectual and initially undertaken by the Father and secondly the Father and Mother of the person the grievance was taken against.
The Tribunal find that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and awards the claimant €2,700 in compensation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)