ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002472
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00003474-001 | 23/03/2016 |
Date of Adjudication Hearing: 11/01/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Attendance at Hearing: 18.10.16
By | Complainant | Respondent |
Parties | A Worker | A Training and Education Board |
Attendance at Hearing: 11.01.17
By | Complainant | Respondent |
Parties | A Worker | A Training and Education Board |
Complainant’s Submission and Presentation:
In her complaint form the claimant submitted as follows :- I was informed by the Education Officer that a student with allergies was participating on the cookery course I was teaching. I was very anxious to ascertain what allergies the student had, and made various efforts to find out the information both from the student herself and the Education Officer of the college. I specifically requested an indemnity form the college as I felt I had not been properly briefed as to what type of allergies the student had. Despite my request for the indemnity I did not receive it. Following the class, the student – who had left early – sent an email to the Education Officer, stating that I had treated her in an inappropriate manner and that she did not want to participate further on the course. The Education officer responded and offered the student a full refund of her fees. I felt that the college had left me in a very vulnerable position, by failing to deal with my concerns properly. I attended a meeting with the Education Officer and Principal three days after the complaint however I felt that my concerns were not been taken seriously. I had been employed by the college as a Cookery Tutor working with the School Liaison Officer which was a separate role which contract was not renewed for 2015/2016. I only became aware that I had been replaced in this role, when I was informed by students on the evening of the incident complained of above. I have since become aware that the role has been filled by a third party, who has now also been appointed to teach the evening classes previously taught by me. I feel that my position in the college is untenable and I have not returned to work since the 5th October 2015. I had hoped that a resolution would be reached but this has not happened. I have not receivedmyP45. It was submitted on behalf of the claimant that she had been recruited as a cookery tutor for evening adult classes in Sept. 2008 for approx. 2.5 hours per week.She was paid an hourly rate of €40.85.From 2011 , she was also employed by the respondent as cookery tutor with the Home School Liaison programme on an hourly rate of €40.57. At the commencement of the Aug. 2015 term , the claimant was informed that a student with allergies would be participating on her evening cookery course – the claimant was concerned about about the prospect of teaching a student with allergies and any potential liabilities for herself or the respondent.Unable to contact the student herself , the claimant made contact with the Adult Education Officer to express her concerns- it was only after she commenced the class on the 5th.Oct. 2015 , that the student emailed the AEO with a list of the substances she had to avoid.While the claimant was aware of the student in the class – no complaints were made known to the claimant.During the course of the class the claimant was informed by another student that she was being replaced on the home school liaison programme – a position she had held since 2015. In a series of emails that night the student complained to the AEO about the manner in which she had been treated in class and sought a refund of her fees. On the 6th.Oct., the AEO responded to the student confirmmg that the fees would be refunded and indicating that she sincerely regretted the experience the student had. The student also emailed the claimant who replied directly on the 6th.Oct. The AEO emailed the claimant seeking “ to have a chat with you about this” .On the 7th.Oct., the AEO emailed the claimant requesting a meeting take place with the claimant, the AEO and the College Principal The claimant attended the meeting accompanied by her husband on the 9th.October and gave evidence of how distressing she found the meeting.The claimant submitted that the Principal slammed his fist on the table during the meeting and told the claimant he could replace her with someone walking past on the street.The claimant formed the view that her complaint was being dismissed and given the reduction in her hours and the breakdown in trust with the respondent , she felt she had no option but to resign. It was asserted that the only contact the claimant received in relation to her Home School Liaison hours was a letter dated the 23rd.March 2016 , in which it was asserted that the school had tried to contact the claimant about her availability and had left a message enquiring re same It was submitted that there was no grievance procedure in place to facilitate the claimant in processing her grievance and that there was a complete breakdown in trust between the parties as exemplified by the manner in which the meeting of the 9th.October 2015 had been conducted.It was submitted that it was reasonable in light of such circumstances and given the extreme stress suffered by the claimant for the claimant to resign because of the conduct of the respondent. In her direct evidence she gave a detailed account of the meeting with the respondent on the 16th.October 2015 – she stated that she was upset and angry and felt patronised by the respondents representatives when she set out her account of what happened with the student.She asserted that the Principal of the school hammered the table and said “ I can go out and get 2 people to do your job”.She recounted her exchanges with the Principal - after the meeting - during the course of which she was askedif she resigning. In the course of her cross examination, the claimant asserted that her trust in the employer was entirely broken down when asked about involving her solicitor very early on in the dispute.It was put to her that she had decided not to return to work even though she had been furnished with a letter from the employer which addressed all of her grievances.The claimant was adamant that the meeting on the 9th.October had not ended on good terms.The claimant’s assertions regarding the demeanour of the Principal at the hearing were corroborated by her husband – who attended the meeting with her.He asserted that the Principal asserted aggressively at the meeting that he could bring anyone in off the street to do the claimant’s job. |
Respondent’s Submission and Presentation:
The respondent denied that the claimant was dismissed from her Home School Liaison Programme position – it was asserted that she had not made herself available for work in respect of same.The respondent denied that the claimant was constructively dismissed from the adult education evening class programme – it was submitted that both matters were entirely separate and it was contended that the claimant’s accounts of events were in accurate and incomplete.
It was submitted that the claimant was engaged on a casual part time basis to teach the 2015 cookery course which had been combined with a second course owing to a fall in demand. A calendar of the hours worked was presented in evidence.It was submitted that the claimant was engaged as a casual part time tutor on the Home School Community Liaison Programme working an average of 45 hours per school year from Nov.2012 to May 2015.
The respondent set out their chronology of events leading up to the attendance by the student at the cookery class on the 5th.Oct.2015.It was submitted that “ after 40mins of the first class she found she could not cope with the class and left the college .In such circumstances it is the policy of the college to offer an alternative course or refund where the student decides not to return very early on in the course , usually the first night.”Ms.MW who managed the evening classes contacted the claimant “ we need to have a chat about this” on the 6th.Oct. following receipt of the student’s complaint.It was submitted that the claimant indicated that the matter had been referred to her solicitor “at that early stage” and the ensuing correspondence between the parties was submitted into evidence.The respondent highlighted the correspondence from their solicitor to the claimant’s solicitor , which it was contended dealt with all of the issues raised by the claimant and concluded with an unequivocal invitation to return to work.
It was submitted that in October 2015 , the coordinator of the Home School Liaison Programme tried to contact the claimant to ascertain her availability to take a cookery/ nutrition course with parents but as the claimant failed to make contact , the coordinator engaged another teacher it was asserted that this matter was unrelated to the evening class dispute.
It was submitted that in order to uphold the complaint of constructive dismissal , the WRC must be satisfied that the respondent had conducted itself or its affairs so unreasonably that the claimant cannot be expected to put up with it any longer. It was asserted that every reasonable effort was made to address the concerns raised by the claimant.It was advanced that there was good authority for the view that an employee should invoke the respondent’s grievance procedures before resigning and the provisions of UD474/1981 were invoked in support of this position.It was submitted that the reasonable test which ought to be applied is an objective test – the standard to be applied is that of the average and reasonably robust employee who experiences a workplace difficulty with an employer.It was advanced that the respondent had made every effort to resolve matters to the claimant’s satisfaction; no adverse findings against her had issued ; no criticism of any kind was contemplated and the employer was satisfied to continue in the contract and had invited the claimant to resume work.It was submitted that the standards required of an employee in terms of exhausting the grievance procedure were set out in UD168/2010 Gilsenan v County Meath Vocational Education Committee.
It was submitted that the claimant had responded to the students complaints by precipitating the matter into a list of demands and redresses which she required from her employer even though her employer was powerless to provide some of them.It was asserted that every reasonable effort was made to address the concerns raised by the claimant the respondent had “ acted and replied with every concession within its power”.
In her direct evidence MsW asserted that the claimant attended the meeting on the 9th.Oct. 2015 , with a list of demands and seeking an apology.She submitted a misunderstanding had arisen – she was upset at the meeting ; she apologised to the claimant for what happened ; shook her hand and hoped she would return to work.The claimant was very highly regarded as a cookery tutor.She disputed the claimant’s account of the Principal’s imput at the meeting.Ms.W asserted that the purpose of the meeting on the 16th.October was fact finding – to find out what happened and not to deal with a list of demands.The aggression referred to by the claimant did not happen according to Ms.W and no statement was made by the Principal about bringing someone in off the street
In his evidence the Principal submitted that the student was happy to get her money back – he spoke to Ms.W about meeting with the claimant and wrote the word “Investigate” on the students application form.He suggested the meeting to gain an understanding of what went wrong.He denied that he raised his voice at the meeting on the 9th.October and asserted that he never referred getting someone else to run the course.The Principal asserted that he was satisfied that the claimant had not been bullied as this was a single incident case.He decided to deal with the matter informally – he would have taken notes had it been pursued formally.The Principal asserted that he wanted to understand what happened from the claimant’s perspective – a disciplinary process was never in his head.
The manager of the Home School Liaison Programme gave evidence and asserted that she rang the claimant’s mobile in Sept. 2015 to ascertain her availability to participate in the programme ; she stated that she left a voicemail for the claimant but heard nothing back and then proceeded to recruit another tutor.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
[Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Decision:
I have reviewed the evidence presented at the hearing and noted the submissions made by the parties.
At the final hearing the respondent undertook to submit evidence in support of their contention that the claimant had been contacted regarding her availability for the Home School Liaison Programme – it was submitted that a message had been left on the claimant’s phone requesting her to contact the college.The claimant was adamant that she received no such phone call and contended that her phone did not have a voicemail facility. Despite reminders and an undertaking to respond to those reminders” following the week of the 17th.April” – no such evidence has been presented.In such circumstances I find the claimant’s assertion that she was not contacted by the college to be credible.In light of the fact that the claimant had been working on this programme since 2011, I find the respondent’s failure to contact her and the casual nature with which such employment appeared to be viewed by the respondent – i.e. an offer of further employment by telephone , I am upholding the complaint of unfair dismissal.The respondent spoke in very positive terms of the claimant’s record and reputation as a Tutor – in light of this , I am satisfied the claimant had a legitimate expectation of resuming work on this programme – even if a call had been made to the claimant offering her further work on the programme, I find that given her length of service, this should have been followed up at least with a written communication before forming the view that the claimant was no longer interested in teaching on this programme.I am satisfied that the non renewal of her employment on this course constituted an unfair dismissal and I require the respondent to pay the claimant €1,622.80 compensation within 42 days of the date of this decision.
While I acknowledge that the respondent has argued that the forementioned complaint was entirely separate from and unrelated to the complaint of constructive dismissal in the context of the night classes, I find the claimant’s evidence and submissions that the manner in which the student complaint was handled to be intertwined with and relevant to the backdrop of hearing from a student on the night of the 5th.Oct that she was being replaced on the Home School Liaison Programme , to be compelling.
I have considered all of the evidence and submissions presented with respect to the Night Class course.I note the claimant was never furnished with a contract of employment and in that context accept her evidence that she was never furnished with a grievance procedure and would have been unaware of the existence of same.I further note that the manner in which the college conducts its business with part time “casual “ tutors appears to be characterised by a notable absence of formality.In this regard , I found the respondent’s failure to keep a written record of the meeting with the claimant and her husband on the 9th.October 2015 , having been in receipt of a lengthy correspondence from the claimant’s solicitor on the 8th.Oct.2015 , to be symptomatic of such informality.There was a complete conflict of evidence between the parties with respect to the exchanges at the meeting but the onus rested with the respondent to maintain a written record of the meeting.
I note the contents of the respondent’s email to the student who complained “ I sincerely regret that you had this experience in our college .I will arrange an immediate refund of your fees”.This was issued on foot of an email that contained serious allegations against the claimant – the email was issued to the student without reverting to the claimant to get her version of events t.This was unfair to the claimant , was in breach of her rights under natural justice and amounted to a failure to observe the principals set out in SI 146/2000.I find the respondent’s actions were so unreasonable that the claimant was justified in resigning from her employment and consequently I am upholding the complaint of constructive dismissal.I require the respondent to pay the claimant €5,206.40 compensation within 42 days of the date of this decision.
Dated: 31 May 2017