UD1087/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1087/2015

CLAIM(S) OF:                                                                                       

Sharon Timmons                                             -claimant

against

Carlow Women’s Aid Limited                       -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr N. Russell

Members:     Mr J. Browne

                     Ms S. Kelly

heard this claim at Carlow on 6th September 2016

                                          and 1st November 2016

                                        and 3rd November 2016

                                        and 24th January 2017

                                         and 25th January 2017

Representation:

Claimant:         SIPTU, Liberty Hall, Dublin 1

Respondent:    Members of the Board of Management

Summary of evidence:

The respondent provides information and support services for individuals affected by domestic violence. The service receives funding from a government body. The Co-Ordinator of the service was the claimant’s direct line manager. The claimant was employed with the respondent as a full-time project worker from June 2010. Dismissal as a fact was not in dispute and was effective from August 2015. Both the claimant and the Co-Ordinator gave evidence that the employment was uneventful during 2010 and 2011 and that they had worked together without issue for the first two years of the employment.

Throughout the time of the issues in this case the respondent had three Boards of Management. The Co-Ordinator gave evidence that she updated each Board on the issues in the workplace. VM gave evidence to the Tribunal. She was Chairman of the Board for a period of time. The issues in this case were 18 months in progress by the time she joined the Board.

It was the claimant’s evidence that the main part of her role was working with the clients of the service. Between 2010 and 2015 the demand for client services increased year on year. The claimant found that she had to take on certain responsibilities of the Co-Ordinator’s role. Initially the claimant did not have an issue with this but over time she felt disproportionately affected due to the growing demand for client services.

The claimant outlined efforts she undertook to fundraise for the service. It was the claimant’s evidence that the Co-Ordinator’s role was diluted and she was assuming responsibility for duties that were not part of her role. During 2012 she effectively stood in for the Co-Ordinator and the workload became too much. The distribution of cases appeared unfair to the claimant.

The Co-Ordinator gave evidence that it was agreed that the claimant would assume extra responsibility during 2012 when she would be absent due to a planned medical procedure.

In May 2012 the claimant approached the Co-Ordinator informally and outlined that she felt the workload was disproportionate. The Co-Ordinator expressed to the claimant that it was healthy for her to challenge work practise for the betterment of the service.

It was the Co-Ordinator’s evidence that she received emails from the claimant throughout 2012 that were of concern to her and she asked the claimant to an informal meeting to discuss those issues and to put supports in place. It was the claimant’s evidence that the Co-Ordinator showed concern for her. The claimant was informed of the sick leave policy but it was her evidence that there was no challenge to her sick leave absences at that time.

The claimant and the Co-Ordinator met for a number of supervision sessions during 2012. It was agreed at one such session that the claimant would withdraw from work outside her job description. The claimant believed they had agreed that she would focus on client work. The claimant believed that she and the Co-Ordinator had a healthy relationship until the very end of 2012. With hindsight she could see that the relationship had begun to break down.

The Co-Ordinator was absent from June to September 2012. It was the claimant’s evidence that she and her colleague were dissatisfied with the level of work they had to undertake regardless of the presence or absence of the Co-Ordinator. They agreed to approach the Co-Ordinator about this issue in September 2012 but due to circumstances outside their control this could not happen. The claimant felt the opportunity had passed.

The claimant requested supervision from the Co-Ordinator. The claimant raised some concerns she had regarding allocation of funding. It was her evidence that the Co-Ordinator once again told her that raising such issues was a healthy practice. The claimant stated that she wished to put her issues in writing but not as a grievance. The claimant raised the deterioration in their relationship but the Co-Ordinator told her they had worked through “everything”. The claimant was subsequently surprised to receive the Co-Ordinator’s letter withdrawing from the supervision process.

The claimant’s appraisal was conducted by the Co-Ordinator during the latter part of 2012. It was the claimant’s evidence that she was informed by the Co-Ordiantor that she was over dedicated to clients. The claimant felt ambushed on this issue as the matter had not been raised during the supervision session. Both the claimant and the Co-Ordinator gave evidence that the appraisal was otherwise positive.

In November 2012 the claimant’s attention was drawn to a report that the Co-Ordinator had submitted to the respondent’s Board. The claimant stated that she was the only person not provided with this report. When she did get sight of it she felt what was contained within that report was unfair and that it suggested that she needed to be reminded of what her duties were. The claimant raised her concerns about this report with the Co-Ordinator and a Board member and was reassured that there was no need to be concerned as “there is nothing but positives” about her work.

In January 2013 the claimant requested documents from the Co-Ordinator which had been submitted to the Board and which had referenced the claimant. The claimant was certain there were omissions in what she received.

The Co-Ordinator gave evidence that she was asked to meet the Board in 2013 regarding the sick leave of staff. During this year the funding body brought in a new attendance policy. The claimant did not agree to this new policy. The Co-Ordinator attributed the change in the relationship to when she had challenged the claimant on her sick leave and absences. This was when she was directed to examine time in lieu and absenteeism by the Board of Management in light of the funding body’s implementing a new sick leave policy. The Co-Ordinator was instructed by the Board and the funding body to get the new policy implemented and there was a dispute between the parties as to whether or not the policy was implemented. In any event the claimant did not accept the new policy. The claimant appeared to the Co-Ordinator to be sick on “important” days.

The claimant outlined that her absences were both genuine and certified with the exception of three days uncertified. The claimant disputed that she was challenged on her absences by the Co-Ordinator.

It was the claimant’s evidence that a Board member (HD) informed her that the Co-Ordinator had complained of her to the Board. As the claimant had no knowledge of these complaints she lodged a data access request. The claimant met with HD on the 11^th April 2013 outlining a number of concerns which she provided to HD in writing. The claimant asked for matters to remain confidential at that time. It was the Co-Ordinator’s evidence that what was said to the claimant by HD was untrue and was subsequently retracted by HD.

The claimant subsequently lodged a formal grievance against the Co-Ordinator in April 2013. The claimant wanted the grievance addressed by means of the grievance procedure in accordance with the employee handbook.

The Co-Ordinator gave evidence that she returned from a medical absence and was informed that the claimant was in a confidential process with HD. It was the Co-Ordinator’s evidence that she did not know during 2013 or 2014 about the complaint made against her –she was outside of the grievance process. During that time when she invited the claimant to a meeting, the claimant would not engage with her on the basis that she was partaking in a process.

Both parties gave evidence around the issue of confidentiality. It was the claimant’s evidence that she did not confine the respondent to the stricture of confidentiality once she lodged a formal grievance. It was the evidence of VM for the respondent that the Co-Ordinator was aware that the claimant had raised issues pertaining to her and her management but the Co-Ordinator was not aware that there was a grievance held against her. The Board was bound to confidentiality on the direction of the claimant. VM gave evidence that she and her colleagues on the Board had inherited an understanding from their predecessors that the claimant had bound them to confidentiality regarding her grievance.

The claimant gave evidence that the Co-Ordinator had arranged a meeting between the claimant and the Board on the 8^th May 2013 regarding her grievance. She believed the Co-Ordinator was therefore aware of the grievance. The claimant's minutes of this meeting were opened to the Tribunal. A further meeting took place between the claimant and the Board on the 16^th September 2013 to discuss the grievance. The claimant’s representative requested the Board to invoke the formal grievance procedure and to have an investigation conducted into the claimant's grievance.

Nothing further happened regarding the claimant’s grievance despite requests from her union representative. Subsequently, the respondent engaged an independent industrial relations practitioner (JM) to deal with the grievance.

It was the evidence of the Chairperson that she had recommended obtaining external advice from the time that she came onto the Board. It was her “gut” feeling that the situation was too difficult for the Board of Management to deal with. The Board were reluctant to bring in external advice and tried to deal with the issues internally in the hope that matters would “just go away”. When JM was brought in she understood that he would mediate between the claimant and the Co-Ordinator.

The claimant met JM for the first time on the 11^th August 2014 and it was agreed that he would investigate her grievance according to procedure. The claimant expected a follow-up meeting but instead she received JM’s outcome report by email on the 12^th August 2014. JM’s investigation report made a finding that the effect of the claimant’s stricture of confidentiality was that the Co-Ordinator was denied natural justice for over 12 months. JM also found that the rule against bias had been compromised and the right to be heard had not applied to the Co-Ordinator for over 12 months. As the process had failed the principles of natural justice and fairness he found that the process should be terminated.

It was the Co-Ordinator’s evidence that while she may have had some knowledge of the grievance in January 2014 she did not know the details of the complaint. The first time she received the details and documents of the complaint against her was when she met with JM in August 2014. His finding was that she had been excluded from the process. The Co-Ordinator felt upset with the Board of Management.

The claimant’s evidence was that she found the findings to be unfair as she believed the Co-Ordinator had in fact known of her grievance having arranged the meeting with the Board in May 2013. Despite the objection to the findings by the claimant’s representative and their request to appeal the findings, the Board adopted JM’s findings.

The Co-Ordinator provided dates that she was available for mediation but she understood the claimant did not want to pursue this process.

In early September 2014 the Board received notice from the Health and Safety Authority regarding a bullying claim from an employee against the organisation.

In the latter part of September 2014 the claimant reported that she has suffered an accident at work. She was subsequently absent from work for six days.

In November 2014 the Labour Relations Commission corresponded with the parties having received a request from the claimant regarding her unresolved grievance. On 5^th November 2014 the Board sought legal advice.

In January 2015 the claimant was absent from work. Her doctor subsequently certified her as fit to return to work but the Board of the respondent referred her for a medical assessment.   This resulted in the claimant being absent from work during January and February while she waited for this assessment. The claimant was subsequently assessed by Dr. H on the 23^rd February 2015. The claimant was deemed fit to return to work.

The claimant returned to work in the latter part of February 2015. She subsequently received an email dated 25^th March 2015 from the Chairman of the Board. The email referred to the fact that the occupational health assessment service had noted the claimant was assessed as fit to return and that there ought to be no further absences. The email stated: “Should they arise without due cause the Board will have no alternative to proceed down the disciplinary process up to and including Termination (sic).”  

The claimant gave evidence that she found this letter upsetting, abrupt and inappropriate in circumstances where she had been assessed as fit to return to work. The claimant sought clarification of the contents of this email and some inter-party correspondence ensued.

It was the evidence of the VM, Chairman at that time, that the Board was keeping MK of the funding body aware of issues and met with her in January 2015. MK advised the Board of Management that if persistent sick leave continued and the claimant was not engaging with the Co-Ordinator then the Board should “sack her”. The Chairman acknowledged that the Board probably had not supported the Co-Ordinator.

Subsequently in May 2015 the claimant was absent from work for 11 days. It was her evidence that this absence was discussed in advance with the Co-Ordinator. The Board wrote to the claimant on the 25^th May 2015 expressing their concern about her absence from work particularly in light of the report of the occupational health service in February 2015. The Board requested a medical certificate explaining the medical problems preventing the claimant from attending to her duties at work. The letter also requested a certificate that she was fit to return and fully resume her employment duties. The Board proposed to have the claimant medically assessed once again.

1. ^th June 2015 as fit for full normal work duties and wrote that she could see no reason why the claimant should continue to experience excessive sick leave. The claimant subsequently returned to work.

The Co-Ordinator wrote a formal complaint against the claimant dated the 28^th June 2015. She provided this document to the Chairman of the Board on the 2^nd July 2015. The complaints related to the manner in which she was misrepresented by the claimant in reports and meetings and also in relation to the manner in which she had not been afforded fair procedure in the process. She requested a meeting to deal with issues under a number of headings.

It was the Co-Ordinator’s evidence that the claimant did not wish to engage or communicate with her. No performance appraisals had been carried out for a number of years due to the process the claimant was in. The Co-Ordinator described this four-year period as extremely stressful. During this time she reported the situation to the three different Boards of Management and requested for an external person to be brought in to address matter. She suggested mediation to the Board and took other steps to care for her well-being.

The Chairman forwarded the Co-Ordinator’s complaints to the claimant by email and asked the claimant to attend a meeting regarding the complaints. The meeting was ultimately scheduled for the 21^st July 2015.

Subsequently (and within a short period of time) the claimant was handed letter dated 2^nd July 2015 from the Board. This letter stated that the Board was concerned that its trust in the claimant had continued to deteriorate and that her paid absence and conduct were undermining the performance of her duties and service to clients and staff. The letter requested the claimant to attend a disciplinary meeting to afford her the opportunity to answer the concerns and to show good cause why the Board should not proceed down the disciplinary route. This meeting took place on the 8^th July 2015 and was chaired by RB, a legal practitioner. The claimant submitted written responses to the issues raised by the Board. She did not get the minutes of this meeting until the subsequent appeal.

It was the VM’s evidence that the disciplinary process was adjourned for two weeks during which time the Board sat and made the decision to dismiss the claimant. In reply to questions from the Tribunal the Chairman confirmed that RB did not given advice to the Board regarding that decision. His presence at the disciplinary was to conduct the meeting.

The Board of Management informed the claimant by email that having considered her responses to its concerns it was with regret that a decision had been taken to terminate her employment. Reasons for dismissal were not provided at that time.

VM gave evidence that the Board of Management in consultation with MK of the funding body and their solicitor requested the claimant to attend the disciplinary hearing on the 8^th July 2015 and the subsequent meeting on the 21^st July 2015. After due deliberation the Board of Management decided to dismiss the claimant on grounds of continued absenteeism and reluctance to engage with the Co-Ordinator.

The claimant’s representative wrote to the Board outlining that the meeting of the 21^st July 2015 was to respond to the Co-Ordinator’s complaints against the claimant and was not a disciplinary meeting.

The reasons for the claimant’s dismissal were outlined in an email dated 12^th August 2015 and were outlined as follows:

• issues in the disciplinary meetings 8/7/15 and 21/7/15
• conduct in relation to an unacceptable level of ill health absence
• the claimant’s ongoing reluctance to engage or work constructively with management
• the claimant’s capability of carrying out responsibilities as a result of the above.

The claimant sought to appeal the decision and the appeal was scheduled for the 7^th August 2015. The appeals panel was comprised of a new Board member. Also in attendance was an independent observer and RB as legal adviser. The outcome of the appeal was communicated to the claimant by email on the 17^th August 2015. The claimant was advised that the appeals panel upheld the decision of the Board of Management to terminate her contract. On the 1^st September 2015 the appeals panel issued the claimant with reasons for upholding the decision to dismiss. The grounds relied upon included capability, competence and conduct in relation to the work the claimant was employed for. In particular the claimant’s excessive sick leave record and an unwillingness to engage with her employers was noted. It was the claimant’s evidence that her two colleagues, including the Co-Ordinator, had greater absences than her.

The claimant gave evidence of her financial loss since the dismissal and her efforts to mitigate that loss.

Determination:

It was clear to the Tribunal that the working relationship between the claimant and the respondent’s Co-Ordinator began to decline from June 2012 and by the end of 2012 had become unworkable without significant intervention from the Respondent’s Board. The working relationship needed to be a strong one based on mutual support in what was a small organisation and where the clients had significant needs. Any conflicts arising needed to see decisive action by the respondent’s Board.

It would appear to the Tribunal that the working relationship between the claimant and the Co-Ordinator came under strain when the claimant became discontent around issues in relation to her own role and the service itself. It is the Tribunal’s view that the Co-Ordinator did seek to address issues with the support of the Board but little of significance was achieved.

The claimant pursued matters as she considered appropriate. She hoped that the Board would intervene and address the issues raised by her.

The Tribunal cannot put itself into the shoes of the Board members and assess the merits or otherwise of the issues raised by the claimant. What is clear, however, is her entitlement to raise those issues and have them investigated

It appears to the Tribunal that both the claimant and the Co-Ordinator were looking to the Board to intervene and address issues in an informal manner and that neither were looking to escalate to a formal process.

The Tribunal had some insight as to what was going on at Board level when evidence was given by VM, Board Member, that the Board was hoping that the entire matter would “ go away”.

Being a member of a Board is a very onerous responsibility. In the case of voluntary organisations, it is also an unpaid and sometimes thankless role. The Tribunal is slow to be critical of the work of the Board members of a voluntary organisation however, the fact of the matter is that once an appointment to the Board is accepted then, the individual accepting that appointment is bound by the obligations inherent in that role.

In this instance, the respondent’s Board failed to step up and avail, in a timely fashion, of the myriad of the dispute resolution models that were available. Instead, the festering issues were allowed to continue unaddressed. Both the claimant and the Co-Ordinator were let down in this regard by the Board.

The matter escalated to a formal grievance on the 26^th April 2013. The Board appointment JM as an independent party to deal with the claimant’s grievance. However JM was of the view that the withholding of information by the Board from the Co-Ordinator was a breach of the principles of natural justice and left the Co-Ordinator at a significant disadvantage. While the Tribunal agrees that the Board was remiss in failing to provide full information to the Co-Ordinator, this could have been regularised and the process continued.

The Tribunal is of the view that the Board should have sought to do more to deal with the issues under the grievance process and did not discharge its obligations simply by appointing JM. A real opportunity to achieve resolution of issues in the workplace was lost here.

Within weeks of JM’s determination the Board received notices from the Health and Safety Authority and by early November had received correspondence from the Labour Relations Commission.

In early January 2015, the Board held a meeting with the funding body's representative. This funding body provides much of the funding for the operation of the respondent’s service.

In evidence from VM, the Tribunal heard that the funding body representative advised the Board  to “sack her” when informed about issues with the claimant.

The Tribunal is satisfied that at that point, the Board determined that the claimant’s position might have well been untenable. During her evidence VM referenced “the struggle” which the Board had with the matter for years.

Reviewing what had occurred in late 2014 it is clear to the Tribunal that the decision was made to terminate the claimant’s employment if the opportunity arose. The claimant was out for periods of certified and legitimate sick leave in 2015. Following a very brief absence with a viral illness, the claimant was referred for the second time for an occupational medical assessment. She had previously retuned to work following a more extended absence with a positive medical assessment. On this second occasion in 2015 the claimant was certified fit and in good health.

Against this certification it is difficult to see any justification for what occurred on the 2^nd of July 2015. The Tribunal believes that the complaint against the claimant by the Co-Ordinator and the action by the Board was orchestrated. For absenteeism to be raised by the Board as a significant issue was disingenuous at this point. The Tribunal believes that the respondent had no real issue around the absenteeism up to this point and it was not legitimate to raise it as a significant issue at a time when the Board held certification of fitness and good health from its own occupational medical advisor.

The Tribunal believes that the Board had predetermined that the claimant should be terminated. This view is supported by the manner in which the disciplinary process was conducted and the decision to terminate arrived at. The process was fundamentally unfair and the sanction (if one was warranted) was disproportionate.

The Board appears to have simply “tired” of the entire process. However, in circumstances where the claimant’s employment was at risk, this was not good enough. The Tribunal is satisfied that the claimant was unfairly dismissed.

The Tribunal must then consider if the claimant contributed in any way to what occurred. This is a difficult question. The claimant is clearly an extremely capable lady; however, the Tribunal feels that she was not entitled to disengage from her Co-Ordinator who was endeavouring to manage the situation. With rights come obligations. Both could have so easily worked constructively together to achieve resolution.

On balance, the Tribunal is of the view that the claimant was too quick to disengage from her Co-Ordinator and the level of discomfort around the relationship as a result was primarily down to the claimant and the manner in which she sought to address her issues. While a claimant cannot be criticised for exercising her legal rights, an educated and skilled claimant would, however, be expected to show a certain level of judgement in the situation that developed. In a small organisation like the respondent’s the approach taken by the claimant was not entirely helpful.

Following the termination of her employment the claimant made every effort to secure alternative employment and to mitigate her losses.

Weighing up all factors, the Tribunal determines that the appropriate compensation for the claimant’s Unfair Dismissal is €25,000 which it now awards.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)