UD1163/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                       CASE NO.

Denise Phelan – Appellant                                                                                    UD1163/2013

against the recommendation of the Rights Commissioner in the case of:

Counter Products Marketing Ireland Limited - Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr T. Taaffe

Members:        Mr M. Noone

                        Ms. P. Ni Sheaghdha

heard this appeal at Dublin on 10th November 2014

                                           and 20th April 2017

                                           and 24th October 2017

                                           and 1st December 2017

Representation:

Appellant:       Mr Andrew Cody, Reidy Stafford, Solicitors, Main Street, Kilcullen, Co. Kildare

Respondent:    Ms Mary Jane McFerran BL instructed by:

                        IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2

                        (10th November 2014, 20th April 2014)

                           Peninsula Business Services (Ire) Limited, Unit 3, Ground Floor, Block S,

                           East Point Business Park, Dublin 3.

                          (24th October, 1st December 2017)

This appeal came before the Tribunal as an appeal by an employee (the appellant) of a recommendation of the Rights Commissioner reference r-130849-ud-13/JR under the Unfair Dismissals Acts 1977 to 2007.

The determination of the Tribunal was as follows:-

The Tribunal first heard evidence in relation to the preliminary issue that the appellant had lodged her original claim outside the statutory time limit and therefore the Tribunal had no jurisdiction to hear this appeal. 

The Tribunal finds that the Rights Commissioner’s decision to extend the time limit for submitting a claim properly made in accordance with Section 8 (2) (a) of the 1977 Act and accordingly the Tribunal has jurisdiction to hear this Appeal. 

The appellant is claiming that she was constructively dismissed. Therefore she gave evidence first.

Note: All letters, emails and correspondence referred to during the hearing of this appeal was opened fully to the Tribunal, where available.

Appellant’s Case: 

The appellant first worked for the respondent on a five-year contract starting between 1991 and 1996. After that she was head hunted by and for another company. 

The respondent advertised her recent position she applied and was interviewed in the Summer of 2008 and she started work on the 4th of October 2008. Her job title was Retail Store Representative. She visited stores that retailed games. She merchandised and demonstrated stock on shelves to maximise sales within the various stores that were allocated to her. She worked 22 to 25 hours a week and was expected to visit 18 stores every week. The only issue was that one retailer that she visited weekly changed to a monthly visit and on occasions she was required to do launch calls on a Friday. 

The appellant told the Tribunal that she was happy in her role. However, in August 2010 CQ, her Supervisor contacted her advising her that changes were coming and invited her to a meeting. 

The appellant attended a meeting where two Managers gave a presentation on the changes. The appellant told the Tribunal that she and her colleagues were in a state of shock. She looked at what the changes would mean for her. The number of calls she was expected to do reduced from 18 to 10 per week. The appellant said she was not happy but could work with it. 

Two weeks into the new roster she met with KM (Client Services Manager) and discussed the issue of one of the stores T Dundrum. FB (Client Service Executive) also attended this meeting.

The appellant told the Tribunal that her working conditions changed dramatically. Two Managers, KM and JB, were constantly coming to visit her at work and often without notice. She dreaded leaving the house to go to work. 

In February 2011 the appellant became ill, attended her doctor, was prescribed medication and was absent from work. 

On the 26th of April 2011 she wrote to the respondent explaining the reason she was absent form work was due to stress and depression caused by the fundamental changes to her role relating to a the D contract. She outlined in detail her grievances. The letter was acknowledged on the 11th of May 2011. 

On the 26th of August 2011 the appellant attended a meeting with KM regarding her absence from work. A further meeting was later scheduled. On the 29th of September 2011 a letter from the respondent advised her they would be investigating her grievances and was invited to a meeting with CC (Client Service Director) and SOB (from HR). 

During this time the appellant received legal advice and her solicitor wrote to the respondent on the 10th of October 2011. The respondent replied on the 20th of October 2011. 

It was requested and the appellant agreed to meet the respondent’s company doctor. She attended on the 4th of November 2011. The resulting recommendation of the visit was mediation. 

A meeting took place in November 2011 relating to the appellant’s grievance. SOB, CC, the appellant, KM and FB were in attendance. A detailed finding was issued. 

In January 2012 the appellant’s solicitor wrote to the respondent regarding the findings and agreed mediation would be beneficial and proposed an external mediator be engaged. 

Following some delays mediation took place on the 23rd of March 2012. The appellant told the Tribunal that this was “not mediation as she knew it”. All parties were in the room together, i.e. KM and FB. At this meeting the appellant was informed her hours of work would decrease further to 2-3 hours per week.

On the 3rd of April 2012 the appellant’s solicitor wrote to the respondent stating: 

“Having considered the situation and the fact that out client is now only offered a sum in the region of 2 to 3 hours work per week, a very significant reduction in the number of hours available to her, considering the fact that others in a similar position, have not seen a similar reduction, are working substantially more hours, our client has had no option but to consider herself constructively dismissed.” 

The appellant gave evidence of her efforts to mitigate her loss of earnings following the termination of her employment. 

Under cross-examination the appellant told the Tribunal that she felt she had no alternative but to leave her employment. Her hours were reduced dramatically, other colleagues were treated differently to her and given more hours of work. 

She told the Tribunal that she felt the company had not wanted her to return to work. 

Respondent’s Case: 

AL (head of HR), FB (Client Service Executive) and KM (Client Service Manager) gave evidence on behalf of the respondent. 

AL explained that in 2010 the respondent’s teams merged. This brought a reduction in hours available for the team members, including the appellant, from 20-22 hours to 18 hours per week. 

AL told the Tribunal that when the appellant lodged a grievance she had not dealt with it. It was dealt with by CC and SOB. 

Following the recommendation that was made by CC and SOB, and other issues that had arisen, a mediation meeting was scheduled for March 2012. AL was asked to chair the meeting. 

The appellant, FB and KM were in attendance. AL told the Tribunal that there were no minutes of the meeting available for the Tribunal to view. However, the email produced to the Tribunal was a true refection of what had occurred at the meeting. 

AL told the Tribunal that she did not recall specific hours or locations being discussed at this meeting and the appellant was not offered a certain weekly calls run. AL said she could recall how the meeting ended, (five years had since passed) but stated that she “assumed she was happy with the result”. 

AL told the Tribunal the only further contact she had with the appellant was through the appellant’s solicitor. 

Under cross-examination AL reiterated she had no hand, act or part in dealing with the appellant’s grievance or the recommendation made. 

When asked, AL said the purpose of the meeting in March 2012 was to “get to the root of the issue”. 

When put to her, AL agreed the appellant had not been offered to appeal CC’s decision. 

FB gave a detailed account of her employment history with the respondent. She explained that initially she had the same role as the appellant but in 2010 she moved to a Line Manager role based in Limerick. 

FB stated that after the merger of teams the amount of client calls the teams serviced had decreased. 

FB told the Tribunal that the appellant had raised issues with her regarding certain stores. FB said she tried to accommodate the appellant where she could. 

She explained that as she was based in Limerick the majority of her calls were in the Cork / Limerick region although she did visit the appellant on calls occaionally. 

FB told the Tribunal that she had been unaware that the appellant had issue with her visits at that time but was later made aware of it by CC after the appellant had raised a grievance against CC. 

The appellant was then absent on sick leave and FB had cause to contact her regarding the lack of explanation of illness of her medical certificates. 

FB told the Tribunal that she had attended the mediation meeting in March 2012 with AL, KM and the appellant. She told the Tribunal that the email produced to them at the hearing was “pretty much based on what was said” and felt everyone was happy leaving the meeting. 

FB told the Tribunal that she did not feel the appellant was treated any differently to any other employee. 

Under cross-examination FB said she could not understand how the appellant had come to any understanding that she was only being offered under 3 hours work per week. No specific calls or hours had been discussed at the meeting in March 2012. 

When asked, FB agreed no mediation had taken place between herself and the appellant as per the initial recommendation. 

KM told the Tribunal that all employees were affected by the merger of teams in 2010. All territories were divided up. 

KM told the Tribunal that the appellant’s number of calls were reduced but this was compensated by her mileage expenses. 

KM said the appellant had made her aware that she was unhappy. KM said she tried to accommodate the appellant where she could. 

KM said did make visits to the appellant’s locations but this was to support her and for her, KM, to gain from the appellant’s vast experience in her work. KM said she did not realise her visits were an issue. 

A meeting was held with the appellant and SOB regarding her absences. KM was in attendance. However, KM told the Tribunal that she was unaware that her attendance had caused upset for the appellant. KM said had if she known she would not have attended. 

KM attended the meeting of March 2012 and felt the meeting had gone well. AL had asked her to attend and had advised her that she, AL, had told the appellant KM and FB would be in attendance. KM said no specific hours were discussed at the meeting but 2 to 3 hours of work may have been discussed in respect of a client’s instructions. 

KM told the Tribunal that she left the meeting with the understanding the appellant was returning to work. 

Under cross-examination KM agreed calls in Wexford had been given to the appellant but had been later withdrawn due to level of costs involved. 

KM told the Tribunal that she had wanted to offer calls to a store the appellant would share with a colleague but never got the opportunity as the appellant went on sick leave and then left the respondent’s employment. 

Determination: 

The Tribunal has carefully considered the evidence adduced both verbal and written 

The Tribunal addressed the appeal of the respondent to uphold their original application to the Rights Commissioner for a strike out of the appellant’s claim on jurisdictional grounds. Is it satisfied that the intention was clearly present in the process engaged in. In the absence of any evidence of an abandonment of this intention by the appellant, the Tribunal finds and determines that the failure to lodge the claim within the original statutory period of six months was not due to any decision taken by the appellant not to proceed. It is found that the expiration of this time period took place as a result of a misunderstanding between the appellant and her solicitor and that this is honestly arrived at and represents a presence in the process of exceptional circumstances insofar as the appellants’ application is concerned. It is therefore found the claim lodged within the extended statutory period of six months does not fail on jurisdiction grounds and the appeal in therefore not upheld. 

It is common case that the dispute the subject matter of the hearing was directly linked to a significant change in the respondents work practice, a change which affected both the appellant and her work colleagues. 

The appellant was dissatisfied with the change insofar as she alleged that its implementation by the respondent resulted in her being discriminated against in the sharing of the workload between colleagues that in effect she was not being fairly treated in respect of her locations of work or hours worked which impacted upon her earnings compared to other colleagues. It was further alleged that her complaints were not properly addressed and finally that the ultimate addressing of her complaints led to a considerable further worsening of her situation which left her with no option but to resign her position. 

The respondents position was that (a) the change brought in was to ensure the continuation of trading, (b) the manner in which they addressed the appellants’ concerns was fair and reasonable and (c) that her resignation was unjustifiable in the circumstances and should be withdrawn so that further consultation could take place between the parties. 

It is clear that the parties initial contacts failed to reach agreement and that this resulted in a mediation meeting taking place on the 23rd of March 2012. The Tribunal notes the different understandings of the outcome of the meeting and accepts that the negative view taken by the appellant of what she understood to be the respondents’ response to her complaints was the catalyst for the ultimate decision of the appellant to resign. 

The Tribunal is satisfied that the respondents were (a) fully aware of the significance and seriousness of the appellants’ complaints, (b) were given a reasonable opportunity to positively address them with a sufficient time period and (c) failed to adequately, fairly and reasonably respond to the appellants’ concerns which failure directly resulted in the decision of the appellant to resign which in effect resulted in her being unfairly dismissed. 

It is therefore found and determined that the appellant succeeds in her appeal and that the order of the Rights Commission is set aside. 

The Tribunal awards the appellant the sum of €15,000 (fifteen thousand euro) in respect of her unfair dismissal and the Tribunal so determines. 

Sealed with the Seal of the 

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)