Complainant

Respondent

Anonymised Parties

A Care Organisation Manager

A Childcare organization

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00016735-001

10/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00016735-002

10/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00016735-003

10/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00016735-004

10/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)

CA-00016735-005

10/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00016735-006

10/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00016735-007

10/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00016735-008

10/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016735-009

10/01/2018

A pre-school business was transferred on the 27th August 2017, from its then owner to the current owner and Respondent in this case.

Disputes have arisen out of this transfer that can be grouped primarily under the Transfer of Undertaking Regulations 2003 (S.I. No.131 of 2003), the Unfair Dismissals Act, 1977 and Section 13 of the Industrial Relations Act, 1969.

The Complainant asserts that she was denied her rights under the TUPE Regulations and also asserts that she was constructively dismissed by having to resign from her position because of the actions of the Respondent, not having the opportunity to defend herself against allegations and no route through which to pursue a Grievance.

The Respondent admitted at the outset that she was in breach of the TUPE regulations. She claimed mitigation in this, but did not specify what this mitigation might be.

The Respondent rejects the claim of Unfair Dismissal on the basis that the Complainant resigned her position on the 15th December 2017.

All of the other claims emanate from these three main claims and will be dealt with as I go through the detail of the case.

The Complainant says that she commenced employment with the Respondent organisation on the 2nd September 2002. She worked there as a childcare assistant and Montessori teacher until 2012 when she was promoted to the role of Manager.

A serious incident occurred in the pre-school in 2017 resulting in the fatality of an infant. The Complainant was severely traumatised by this, resulting in her absence from work up to the 8th November 2017.

While she was absent due to illness the business was transferred to the Respondent on the 29 August 2017, but she says the staff were briefed about the proposed transfer by the Transferor and the HR representative. They were assured that all of the roles were to be maintained as they were, by the Transferor.

Subsequent to the Transfer she received texts from the Respondent asking when she expected to return to work. A text on the 4th October 2017 asked if the Complainant “would be coming back looking for your manager’s position”. The Complainant responded that she expected that that would be the case and also that her hours of work would remain the same as she had. She says that 20 minutes later she received a text from the Respondent advising her that that she, the Respondent, now does all the manager role and intended keeping it that way.

The Complainant returned to work on the basis that she needed to work and to have an income. She returned to work on the 8th November 2017. She says that the atmosphere was not nice and she felt some hostility from staff. She says she was demoted to the position of cleaner/childcare worker. She says she was put to work in the baby room where babies and toddlers are cared for. She says she was put under a lot of pressure there because of incorrect staff numbers. On the following day she spoke to the Respondent and advised that she was not happy with the working conditions and was transferred to another section, working with afterschool children. During the following week she says that the staff were unfriendly towards her and not cooperating with her.

At this point the Respondent had not had a meeting with her to discuss the business transfer, as she is required to do under Regulation 8 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003.

On the 20th November 2017, at a staff meeting the Respondent made a point of welcoming back another staff member but did not mention the Complainant. In the course of the meeting the Respondent also announced that another member of the staff would act as manager in the Respondent’s absence. The Complainant said she believed that this demeaned her further before the staff that she had managed up to recently. She says that as that week progressed her work was repeatedly questioned. She says that the Respondent, when the Complainant had completed vacuuming a room, took out the vacuum cleaner and re-did this work and used “an inappropriate tone of voice” in addressing the Complainant on this matter.

The complainant says that on the 23rd November 2017 she was feeding a baby. “To prevent the child from hitting the feeding spoon and sending food flying, I laid my hand across the baby to make it easier to feed. With 17 years’ experience and qualified to Level 6 in Childcare this would be the normal thing to do to ensure the child is fed”. She says that at this point the Respondent came up behind her and told her to take her hand off the baby’s hand. She says this was delivered in a very intimidating manner. She says she approached the Respondent at about 12.00 noon on that day and requested a meeting, in private, to discuss the Respondent’s behaviour towards her. She says the Respondent raised her voice and was shouting at her “I am the boss. Can I not say anything to you? If I put you in the baby room you will cry” The claimant advised the Respondent that she now felt that she was being bullied and intimidated. She says the response from the Respondent was “is that it”.

The Complainant says that she was very stressed when she went home and following a discussion with her husband went to her doctor who gave her a certificate confirming her absence from work due to stress. She felt that she was being set up for dismissal. She says that she texted the Respondent advising her that she would not be at work that day because she was so stressed arising from the way she was treated during her last day at work. She asked for a copy of the company Grievance Procedure. She says she did not receive this and then asked for a meeting to resolve this issue. A meeting was arranged for Friday 24th March 2017 at which she was accompanied by her husband. She says the Respondent opened the meeting by saying “I have called you down …” but, the Complainant said that it was she asked for the meeting. She said the Respondent said she was implementing disciplinary sanction arising from the child-feeding issue and issued the Complainant a letter accusing her of heavy-handed physical force on a baby. The Respondent then said she was suspending the Complainant, on full pay, pending further investigation of the issue.

The Complainant says that she was not given notice of a disciplinary hearing and rejects, absolutely, the charge that she, in any way, harmed a child in her care. She says that over 16 years she had established a good reputation in the business. She had never been disciplined or spoken to about any indiscipline during her long career. She was not subsequently asked to be involved in the investigation into the allegations. She says that she never had a discussion with the Respondent about her contract of employment post-transfer. She had not received copies of the company’s Disciplinary and Grievance Procedures, as she had requested.

She was subsequently advised of the use of CCTV in the investigation process but was not issued with the company policy on CCTV use in these circumstances.

The complainant then, on November 27th 2014 asked for a copy of the relevant CCTV footage and a copy of the Disciplinary and Grievance Procedures. She says she wanted to see the CCTV footage and went to the company premises, accompanied by her sister. She viewed the footage but says she saw nothing wrong in her actions in feeding the child. She asked for a copy of the CCTV footage and eventually received this. She asked a qualified person to review the footage and to give her his opinion on the content. The qualified person describes himself, in his report, as ‘a qualified childcare practitioner with a Level 8 BA (Hons) degree in the subject from Carlow IT, Wexford Campus. The report is comprehensive’. In it he says that he is familiar with this [the Respondent’s] business and that “it has been in the community for as long as he remembers and has the utmost respect and reputation from myself and the wider community”.

The Complainant presented this report to the Adjudication hearing. The report goes on to say: “From the start of the footage at 9.15 am on 22/11/17 Mrs [the Complainant] was trying to feed a child in the baby room. The child can clearly be seen as very upset and not happy about trying to get fed. Mrs [the Complainant] tries different techniques to feed the child. First of all, Mrs [the Complainant] tries to feed the child normally but the child does not like this and tries to push the spoon away. Mrs [the Complainant] held down the child’s hand for a brief minute as is normal for trying to feed a baby. Mrs [the Complainant] did not do this aggressively and when this action failed, like trying to feed the child the first time Mrs[the Complainant] reverted to different actions.” He goes on to day that those other actions were in line with best practice and all were used in the period from 9.15am up to 9.19am on the morning in question.

The Complainant was then issued with a further letter from the Respondent, to attend a disciplinary hearing on the 5th December 2017. She says that at this meeting she was presented with a report commissioned by the Respondent and carried out by a HR consultant seeking advice on whether or not disciplinary sanction should be imposed and if yes to what level. I asked if the Complainant was involved in any of this investigation. The answer was no. I asked what the consultant’s qualification was, to investigate this matter. The Respondent answered that she was a mother.

She says the disciplinary meeting was held on the 4th December. It is clear then that the Complainant received a further letter on the 4th December inviting her to a disciplinary outcome meeting on the following day the 5th December. She was advised that the purpose of the meeting was “for the Respondent to discuss with the Complainant the outcome of the disciplinary procedure, that the Complainant would be informed, at the meeting, whether the allegations made will be upheld or not”. The letter goes on to say: “As we have followed all of the steps in the disciplinary process to date, this meeting will be the last and final stage of the disciplinary process”

The Complainant was also advised that she was entitled to have a representative accompany her to this meeting. She was asked to bring a fellow employee or trade union representative only. The letter said it was not compulsory to have a representative. It was at the Complainant’s own discretion and her entitlement to a fair and impartial investigation in relation to the principles of natural justice.

Finally, the Complainant was advised that this disciplinary action could potentially result in her dismissal. The Complainant was also given a copy of the HR Consultants report.

On the following day the Complainant was advised that the disciplinary sanction was a final written warning.

Given what she saw as bullying, harassment, no meetings to discuss her grievances, exclusion from   the investigation process, where she could have answered the allegations laid against her and no access to appeal through the Grievance procedure that didn’t have to go through the Respondent, the stress she felt was so high and her reputation, gained over 16 years destroyed, she had no other option but to resign her position with the Respondent organisation, which she did by letter of the 15th December 2017. Despite the length and quality of her service there was no effort by the Respondent to discuss the situation further.

In summary the Complainant says:

·         Important conditions of her employment were not transferred with her when the business and that the Transferee was culpable in this.

·         When she returned to work her work, in the role she was demoted to, she was constantly criticised, often in front of peers.

·         She was assigned to mind babies without the requisite staff complement.

·         She received no welcome back to work as other staff did, at staff meetings.

·         The stand-in manager was announced, by name, at a staff meeting. She said she wanted the ground to open up, she was so embarrassed.

·         She had no idea that there was an investigation into the baby-feeding issue, nor was she made aware that an external HR Consultant was briefed on the issue and given CCTV footage of the feeding event.

·         She was not invited to meet this external consultant or others who allegedly commented on her. None of those involved and quoted attended the hearing. In this respect she was denied Natural Justice long before the hearing took place.

·         There were many conversations with staff that discussed day-to-day issues and Montessori initiatives that she was excluded from.

All of these led to her feeling of isolation and not being wanted.

Subsequently she says she could not get the form to take her grievance to the company.

When she did it was too late and in any case the form had to be sent to the owner/manager whom she now had no trust in and whom she felt for some time did not want her in the business.

The Respondent says that she worked with the Respondent organisation about 11 years before she became owner of the business. She leased the business on a 5-year lease in August 2017.

She said that she worked with the organisation, on a work experience programme in 2006. She left and returned in 2016

She says that the previous owner and HR person met with the staff to advise of the Transfer of the business. The Respondent, was not involved in this information and consultation process, but says she saw herself as available to staff to answer any queries they might have.

She said she wanted to know when the Complainant would be returning to work. She then advised the Complainant that she would not be returning to her pre-transfer, manager role, as she, the Respondent was taking over this role. She said she advised the Complainant that she would be returning to a role as a childcare assistant.

The Respondent’s legal representative advised the hearing that the Respondent was in breach of the Transfer of Undertakings, Regulations but that there were mitigating circumstances. These were not clarified.

I asked the Respondent why she ignored the Regulations she advised that she hadn’t a clue about such things and didn’t know what she was doing.

She then addressed the Complaint raised by the Complainant under Section 8 of the Unfair Dismissals Act, 1977.

She said that on November 22nd 2017 she observed the Complainant feeding a baby in the baby room. She says that she observed that the baby was unhappy and saw that the Complainant had her hand across the baby’s hand and she told her to remove her hand from that position. The Complainant told her she was unhappy by the admonition and its tone. She says they arranged to meet to discuss the issue at 12.00 noon This meeting took place in the kitchen. She says that there was no shouting, as alleged by the Complainant. Then the Complainant “went off” It was all good humoured.

She says that she was “in the dark and didn’t know what to do”. She made contact with an external HR Consultant to advise her. The Consultant was to advise on a course of action over the baby-feeding incident. The Respondent thought the Consultant would give an unbiased view on what sanction, if any, should apply. I asked what qualification she had in the area of childcare. She responded that the Consultant was a mother herself.

She suspended the Complainant on that day, the 22nd November 2017, with pay, while she investigated the issue further.

The HR Consulted was consulted, given the facts and presented a report to the Respondent. This report concluded with the recommendation that the Claimant be summarily dismissed, without notice.

The Respondent said that she reviewed the Consultant’s report and recommendation and decided that she would not dismiss the Claimant, but would place a Final Written Warning on her file for a period of 12 months. She advised the Complainant at the final meeting on the 5th December 2017, when she was accompanied by her father, that she “just wanted the Complainant to come back to work and get over all this”. She said that she then handed her the letter confirming the final written warning. She said that the Complainant wished to consider the content of the letter.

She says that subsequently the Complainant advised that she could not return to work in the business, for the reasons she gave above.

The Respondent asked the Complainant to pop in with some keys she had and doctor’s certificates covering her recent absence.

She says the Complainant resigned formally on December 15th 2017.

CA – 00016735 – 001:

I find, as complained, that the Respondent did not, as Transferee, transfer the Complainant’s terms and conditions with the Complainant, in conflict with the TUPE Regulations.

CA – 00016735 – 002:

The Complainant did not receive a written statement confirming her terms of employment on Transfer to the Transferee.

CA – 00016735 – 003:

This Complaint is upheld on the basis that the Transferee did not present these terms to the Complainant within 30 days of the Transfer of Undertakings.

CA – 00016735 – 004:

I uphold this complaint on the basis that significant conditions of employment did not transfer with the Complainant, such as her role and title in the organisation that she had immediately before the Transfer of Undertakings

CA – 00016735 – 005:

Decision as in CA – 00016735 – 001 above.

CA – 00016735 – 006:

I uphold this complaint on the basis that I believe from the facts that:

·         There was no formal notice of a complaint to the Complainant and she had, therefore, no opportunity to defend herself against an investigation that had been conducted in the background and was suddenly sprung on her.

·         The Respondent had been asked for a meeting, by the Complainant, to discuss the issue surrounding the baby-feeding, but when she arrived at the meeting the Respondent had turned the meeting into a disciplinary meeting, without notice, and advised the Complainant that she was being suspended, without pay, pending investigation. There was no opportunity for the Complainant to improve her feeding methods, in the event that the complaint had been found to be well founded.

·         The Complainant had requested the Grievance and Disciplinary Policy and Procedure, but these were not delivered to her by the Respondent. At the end of the process when the Complainant had the Final Written Warning applied to her record she was advised she could appeal the decision, she was advised that this appeal was to the Respondent. The Complainant now had no trust in the Respondent. It is also not best practice, in such circumstances, to have an appeal to the person who delivered the discipline.

·         CCTV was used in the investigation without the Complainant being so advised. The CCTV footage was subsequently given to the third-party consultant without the Complainant’s knowledge or permission.

CA – 00016735 – 007:

I uphold this claim on the basis that:

·         The Complainant had understandably lost faith in the Respondent. She repeatedly said that she felt she was being set up for dismissal and that the Final Written Warning was merely a step on the way.

·         The Complainant had lost faith on the basis on which she had lost her position within the organisation. She believed she had been humiliated in front of employees over whom she had had a supervisory role, and I accept that that is so.

·         She was disciplined in relation to the baby-feeding activity and discovered a a third party investigation proceeding in the background to which she was never given access. On hearing this she had asked a person, qualified in childcare, to review the CCTV footage and received a report that was highly complimentary to the Complainant for the way she dealt with the distressed child on the day and the methods she used to ensure feeding was accomplished. The Complainant was unable to produce such evidence because there was no grievance meeting, though she had sought one. She endeavoured to process a grievance but it is clear from the evidence that these efforts were thwarted by the Respondent

·         The degree to which it was obvious that the Respondent did not wish to discuss the issues with the Complainant convinced the Complainant that the only agenda ultimately was her dismissal.

·         Taking her job role from her went to the heart of the contract and the manner in which it was done made it clear that it was not for discussion.

·         I am satisfied that the Complainant was justified in resigning her position and claiming Unfair Dismissal under Section 8 of the Unfair Dismissals Act, 1977. In doing so she refers to the case of Carmel Hayes v Cogan International College Ltd (in liquidation) t/a Cogan Bel Childcare and Early Learning Centres – UD 1250/2014, in which “the Tribunal considered that it was reasonable for the claimant to have concerns about her reinstatement to her former position”. The director MD “failed to address these concerns, when brought to his attention”. The Tribunal went on “The Tribunal accepts that the Complainants position as centre manager was wholly undermined. It was reasonable for her to have lost faith and confidence in her employer and to terminate her employment with the Respondent”.

CA-16735-008:

I believe that this complaint is dealt with by me as part of other complaints made and therefore does not warrant a separate decision from me.

CA – 16735 – 009:

I uphold this complaint on the basis that her full holiday entitlement, including that accumulated prior to the Transfer of Undertakings – on 26th August 2017, should have transferred with the Complainant. The sum paid must now be amended and the shortfall paid to the Complainant. This is in addition to the other awards (below).