UD1070/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1070/2015

CLAIM(S) OF:                                                         

Grainne McSweeney                                            

against

Irish Examiner Limited

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. E. Murray

Members:     Mr. D. Hegarty

                     Mr. J. Flavin

heard this claim in Cork on 22nd August 2016 and 10-11th November 2016

Representation:

_______________

Claimant(s):

             John Boylan, B D M Boylan Solicitors, Clarkes Bridge House, Hanover Street, Cork

Respondent(s):

            Ms Michelle Ryan, Ronan Daly Jermyn Solicitors, 2 Park Place, Citygate Park, Mahon Point, Cork

Claimant’s Case

This matter came before the Tribunal by way of a claim for constructive dismissal arising out the resignation of the Claimant from her employment with the Respondent. The Claimant gave evidence that she had been employed by the Respondent company for twenty five years without any indication to her that her performance in any of the roles undertaken by her were other than exemplary. At the time her employment ended she was a supervisor in the tele-sales department where she was job sharing with her colleague AF and had been doing so for about fourteen years. In or about October 2014 departmental restructuring was undertaken by the Respondent. The Claimant and her job sharing colleague were advised that it was intended to consolidate their job into one fulltime position. They were both asked if they would be willing to take on the fulltime role. Both declined at the time for personal reasons.

It was made clear to them that if they did not take on the job on a fulltime basis that someone else would be appointed and they would be redeployed. The Claimant was under the impression that on redeployment she would continue to job share with AF. Ultimately, a fulltime supervisor was recruited to take over the positon of the Claimant and her job sharing colleague.

During the month of January 2015 the Claimant discovered that a meeting of her telesales team had been held in her absence at which the announcement was made that the supervisory role was to be changed. In January 2015, the Claimant was given a specification for her new role which was also in sales but which was not within the team that she had been previously supervising. The Claimant made a number of suggestions as to how she could be better deployed but these were not taken on board by the Respondent. The Claimant found the conflux of these matters very upsetting.

In February 2015 the Claimant invoked the Respondent’s Grievance Procedure on the basis that the Respondent was introducing changes to her terms and conditions without her consent.

On the final day that she had attended work which was the 9^th of February 2015, she went into the premises where she had normally been based in Blackpool in Cork. She discovered that her entire team had been transferred to new premises in Oliver Plunkett Street. She sought to speak to the personnel manager who was not available and she immediately left the premises and went to Oliver Plunkett Street where she met with her line manager VD. While there she discovered that her former job share partner was temporarily continuing in the role that she had held, while the new supervisor was finishing another project. She became extremely upset and left to go to her General Practitioner.

The General Practitioner submitted a cert and on the 10^th of February 2015 a medical appointment was arranged for her with the company doctor. She was surprised at the haste with which this was arranged.

Over the next number of months there was considerable correspondence between the Claimant and the HR department of the Respondent. The Claimant however felt unable to engage with the Respondent and did not do so and ultimately notified them of her resignation through her Solicitor by letter dated the 1^st of August 2015. She had not engaged with the Respondent in the intervening months and had been extremely stressed and under the care of her General Practitioner. She was not given the benefit of the company sick pay scheme.

Respondent’s Case

Evidence was heard from the Claimant’s line manager VD who indicated that necessary changes were being made in the telesales department. These changes were notified to the Claimant and her job sharing colleague. They were both offered the fulltime position as telesales supervisor but neither one was willing to take on the job.

The witness acknowledged the sterling service of the Claimant over her twenty five year’ service with the company. It was never their intention that her employment with the company would end, or that her remuneration would be affected.

It emerged from her evidence that subsequently her job sharing colleague did take on the supervisory role on a fulltime basis but this was sometime after the Claimant had left work.

The witness gave evidence that she sought to design a job in sales for the Claimant, the Claimant did not appear to be prepared to take on the role that was offered to her. She invoked the Company Grievance Procedure.

Ultimately, on the 9^th of February 2015 the Claimant came to the new premises to where her telesales team had just been moved. A confrontation occurred which the witness found upsetting, so much so that she filed a complaint with the HR department in which she indicated that she considered the Claimant’s aggression and behaviour not to conform with the level of respect and curtesy that she expected.

In the immediate aftermath of the confrontation that occurred between VD and the Claimant in Oliver Plunkett Street the Claimant left and sought medical advice. She never subsequently returned to work.

Evidence was also given by BC the HR Manager of the Respondent company. He introduced a sequence of correspondence which had passed from the Respondent to the Claimant seeking to engage with her with a view to assisting her to get back to work. The response from the Claimant was negative and she did not engage. Ultimately, by letter of the 21^st of August 2015 from her Solicitor she resigned her position. Thereafter, the Solicitors for the Respondent wrote to the Claimant’s Solicitors on the 27^th of August 2015 and in that correspondence it was also suggested that the Claimant should seek to engage with the company and return to work and that her employment was still available to her.

The witness gave evidence that because the Claimant’s medical certificate indicated a work related complaint, that it was the Respondent’s policy to immediately arrange to have the Claimant medically examined.   The deferral of her sick pay arose out of the complaint that had been made by VD which the Respondent were not given the opportunity of fully investigating because of the Claimant’s failure to engage.

The Law

This Division of the Tribunal understands the Law with regard to constructive dismissal to be summarised as follows;

1. Constructive dismissal arises where the conduct of the employer complained of is so unreasonable and without proper cause that its effect on the employee when judged objectively is such that the employee cannot be expected to put up with it.

2. In order to establish constructive dismissal an employee who leaves his or her employment must prove that he did so as a result of a breach of contract by his employer which shows the employer no longer intends to be bound by the terms of the contract or in the alternative that the employer has behaved so egregiously that it would be unreasonable for the employee to continue in employment.

3. A Contract of Employment implies mutual rights and obligations or trust and confidence between the parties. Breach of these implied terms may justify the employee in leaving and successfully prosecuting a claim for constructive dismissal

4. A breach of the implied obligations referred to above can consist of a series of actions on the part of the employer which taken cumulatively give rise to a breach, even though each of the individual incidents may in itself not be sufficient.

Determination:

Having regard to the facts of this case and the principals outlined above the Tribunal unanimously takes the view that though there was some insensitivity on the part of the Respondent in the manner in which they dealt with the Claimant, particularly with regard to the issue of sick pay, nonetheless the evidence does not establish that the Respondent acted so unreasonably as to justify the Claimant terminating the Contract of Employment. The Tribunal are not satisfied that the evidence discloses sufficient grounds for the termination of the contract by the Claimant. Whereas the Claimant had an excellent work record and was complemented on her service, the Tribunal finds that it would have been possible for her to continue in employment if she had taken the necessary steps to respond to the Respondent’s entreaties to engage with them, she did not do so. This is most unfortunate

In the circumstances the claim is disallowed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)