PWD1936

Ms Emer Moran (‘the Complainant’) referred the within related appeals to the Court on 1 February 2019 from a series of decisions and recommendations of an Adjudication Officer each bearing the case reference number ADJ-00012416 and dated 3 January 2019. The Court heard the appeals in Dublin on 13 November 2019.

A number of matters referred on appeal to the Court by the Complainant were withdrawn by her prior to, or at, the hearing. In addition, there were two matters before the Adjudication Officer under the Industrial Relations Act 1969 (CA-00016274-010 and CA-00016274-11) which the Complainant purported to refer to the Court on appeal. Both claims related to alleged bullying and harassment but the Adjudication Officer declined to make any recommendation in respect of either of them. It follows that the Court has no jurisdiction in respect of them and is, therefore, precluded from making a decision in relation to them as they are not validly before the Court.

For the sake of clarity, the matters that remain to be determined/decided by the Court are set out below in tabular format.

CD/19/51:

CA-00016274-008: This is a claim of constructive dismissal.

CA-00016274-009: This is also a claim of constructive dismissal and appears to restate the claim encompassed by CA-00016274-008.

PW/19/38:This claim relates to an alleged underpayment of three days’ pay.

WTC/19/6:

CA-00016274-005: This claim relates to alleged non-payment for the public holiday that fell in October 2017.

CA-00016274-017: This is a complaint of penalisation contrary to section 26(1) of the 1997 Act.

The Factual Matrix

The Complainant commenced employment with Trident Associated Securities Kommunications Limited T/A TASK (‘the Respondent’) on 26 June 2017 as a Control Centre Operator. Her annual salary at the commencement of employment was €24,000.00. Her contract provided for a six-month probationary period, on the successful completion of which her salary was due to increase to €26,000.00 per annum.

It is common case that the Complainant raised a number of queries with her supervisor in or around September 2017 in relation to payment of Sunday premiums and payment for public holidays. Following an escalation of the Complainant’s issues, she met with Mr Ronan Bunting and Mr Gerry Bunting on 22 October 2017. At that meeting, it appears management’s position was that Sunday premium was incorporated into the Complainant’s annual salary and that the Complainant should refer any other pay-related concerns she had to Ms Harford who was responsible for all payroll matters. The Complainant accepts that she did not approach Ms Harford following the meeting of 22 October 2017.

It is agreed between the Parties that a second meeting took place at which the Complainant’s issues were again discussed. Both Mr Gerry Bunting and Mr Ronan Bunting were present at that meeting which took place on 25 October 2017. Ms Harford was called into meeting also. There is a direct conflict of evidence between the Complaint and the other attendees as to what transpired at that second meeting. The Complainant alleges she was dismissed in the course of the meeting. The Respondent’s witnesses, by contrast, each told the Court that they believed that the Complainant resigned her employment at the meeting.

The Complainant’s Evidence

The Complainant told the Court her shift started at 12.30 pm on 25 October 2017. She says she approached her supervisor, Mr F., shortly after the shift started to say that she was unhappy with the outcome of the previous meeting that had taken place on 22 October 2017. In particular, it appears that the Complainant was not happy with management’s assertion that her base salary also included adequate compensation for Sunday working. For that reason she says she told Mr F that she wanted a second meeting with management. That second meeting took place at approximately 4.20 or 4.30 pm that afternoon.

According to the Complainant, she had been on a call when Mr Gerry Bunting came into the operations area and had told a colleague to ask her to come to his office when she had completed the call. She went to do as she had been asked but bumped into Mr Gerry Bunting on the way to his office and redirected her to the canteen area at which point, the Complainant alleges, Mr Gerry Bunting told her that she was wasting his time. Shortly, afterwards Mr Ronan Bunting joined the meeting and was asked by Mr Gerry Bunting to bring Ms Angela Harford in also. The Complainant said she became embarrassed and upset as all she wanted was clarification in relation to the issues she had raised concerning Sunday premium and public holiday pay but Mr Bunting appeared to be blaming Ms Harford for the situation. Therefore, the Complainant says she went back to her workstation to retrieve her handbag in order to go home as her shift was due to end at 5.30 pm and she was too upset to resume work. As she went to leave, she says, Mr Gerry Bunting asked her for her swipe card and told her not to come back to the workplace. The Complainant’s evidence is that she perceived Mr Gerry Bunting’s actions and words to mean that she was being dismissed. She went downstairs but was unable to access the exit door without her swipe card. It appears that Ms Harford came down a different stairs and was able to open the door for her. According to the Complainant, Ms Harford said to her, ‘You do realise that if you walk out this door, you won’t be coming back.”

She was rostered to work the following day but didn’t attend for work as she had hoped to receive an apology from Mr Gerry Bunting. She denies that her actions on 25 October 2017 amounted to a resignation from her employment. She says she was afraid to return to the workplace after the events of the 25^thand was embarrassed at what had happened as her colleagues in the control room would have had full sight of everything that had taken place in the canteen area. The Complainant told the Court that she emailed Mr Ronan Bunting on 2 November 2017. She stated, inter alia, in that email that she had not resigned her employment and had never intimated that she wished to leave her job. She also said that she would have returned work on 26 November 2017 had her swipe card not been taken from her. She reiterated that all she had wanted is that requests in relation to Sunday premium and public holiday payments were properly addressed by the Respondent. Finally, she indicated in that email that she hoped matters could be resolved as she would like to continue working for the Respondent.

Evidence of Mr Ronan Bunting

Mr Ronan Bunting told the Court that he is the Respondent’s Head of Operations. His evidence was that the Complainant’s issues were first brought to his attention on 10 October 2017 by her supervisor, Mr F. He says that he told Mr F to advise the Complainant to address her issues to the accounts department as he was not sufficiently au fait with payroll and such matters. According to Mr Bunting, Mr F reverted to say that the Complainant was insisting on speaking directly to Mr Bunting about her concerns. He initially scheduled a meeting with the Complainant for 17 October but that didn’t take place as she wasn’t at work on that date. It appears Mr Ronan Bunting is required to travel extensively as part of his job and, therefore, the meeting with the Complainant did not take place until Sunday 22 October 2017. Mr Bunting says he told the Complainant to address her concerns to Ms Harford during her next shift on the following Wednesday when Ms Harford would also be in the office.

Mr Bunting then told the Court that both he and Mr Gerry Bunting had been out of the office on business for most of the day on 25 October 2017 but on their return were informed that the Complainant had made four requests to the receptionist for a meeting with management during the course of the day. He then told the Court that the Complainant came to the administration area at approximately 4.20 pm that day and asked Mr Gerry Bunting if he had a minute. According to the witness, the Complainant was then offered the option of meeting in the board room or the canteen and she chose the latter. At the meeting, according to Mr Ronan Bunting, the Complainant said she remained dissatisfied following the meeting on the previous Sunday but nevertheless had not approached Ms Harford in the meantime as she believed Mr Gerry Bunting was legally obliged to explain why she hadn’t been paid properly. At this point, according to the witness, he was sent to asked Ms Harford to attend the meeting. He says that Ms Harford told the Complainant that she was address whatever difficulties she had and invited her to her office to do so but the Complainant, he alleges, then stood up and said, ‘I’m out of here’. Mr Ronan Bunting’s evidence is that Mr Gerry Bunting then invited the Complainant to sit down and have a cup of tea but she declined and went to retrieve her belongings in response to which he advised Mr Gerry Bunting that they would need to request the Complainant’s swipe card if she was leaving. He says that his understanding of what had happened was that the Complainant had resigned from her employment. Notwithstanding this, the witness, in response to a question from the Court, accepted that in hindsight it would have been reasonable to allow the Complainant to reconsider her position and return to work.

Evidence of Mr Gerry Bunting

Mr Gerry Bunting’s is the Manging Director of the Respondent company. His evidence in relation to the meetings that had taken place with the Complainant on 22 and 25 October 2017 was remarkably consistent with that of Mr Ronan Bunting. He too, he says, believed that the Complainant had resigned her employment when she left the meeting on 25 October 2017. He says this left the Respondent in a difficult position and short-staffed until they secured a replacement for her some months later. When asked by the Court why he had not approached the Complainant to ask her to return to work for the Respondent, in those circumstances, Mr Bunting’s reply was: “Why would I visit that on myself?”

Evidence of Ms Angela Harford

Ms Harford confirmed that she had not been present at the meeting of 22 October 2017 but had been asked to attend during the course of the meeting on 25 October 2017. The witness told the Court that she previously assisted the Complainant to resolve a number of income tax queries she had had but that the Complainant had not approached her about the issues under discussion at the meeting of 25 October. Ms Harford’s recollection was that the Complainant had used the words, “I’m out of here”, before leaving the room. She told the Court that she knew that the Complainant would not be able to exit the building having handed over her swipe card so she followed her downstairs. Her recollection of what she said to the Complainant differs from that of the Complainant. According to Ms Harford, she told the Complainant that Christmas was coming up and it was a time when everybody needed money so was prepared to go back upstairs to see if matters could be sorted out. Her recollection is that the Complainant replied that she had been sacked by Mr Gerry Bunting. She accepts that she said to the Complainant, ‘You are walking out’.

Discussion and Decision

Having carefully considered the Complainant’s and the Respondent’s witnesses’ evidence, the Court is of the view that the Complainant raised legitimate concerns regarding both payment for public holidays and payment of Sunday premium, both of which are matters that are regulated by the 1997 Act. The Court is further of the view that the Complainant’s persistence in pursuing these matters caused considerable annoyance to both Mr Ronan Bunting and Mr Gerry Bunting as it is undoubtedly the case that the Complainant’s situation was not unique to her. Both Mr Buntings claimed to be unfamiliar with the requirements of the legislation and sought to deflect the Complainant’s issues to somebody who was not at management level and who, in the Complainant’s perception, would not have had the authority to make what essentially was a policy decision to comply with the requirements of the 1997 Act in regard to Sunday premium and public holiday payments.

By choosing to so deflect the Complainant and by refusing to deal with her issues and to show the type of leadership one expects from people in a senior management position, both Mr Gerry Bunting and Mr Ronan Bunting caused considerable distress and upset to the Complainant which culminated in the termination of her employment. Although the Court is unable to reconcile the parties’ conflicting evidence as to what was said by those present at the meeting on 25 October 2017, the Court notes the contents of the Complainant’s email of 2 November 2017 and accepts that she was otherwise happy working for the Respondent. The Court is firmly of the view, based on the evidence before it that the Complainant would most likely have continued in the Respondent’s employment but for the manner in which she had been treated as a consequence of having sought to assert her legal entitlements under the 1997 Act and would most certainly have resumed work after those events had she been given the opportunity to do so. The Court notes, in particular, the remarks of Mr Gerry Bunting, quoted earlier in the determination, when asked by the Court why he hadn’t made any approach to the Complainant to see if she would resume her employment with the Respondent in circumstances where the Respondent was manifestly short-staffed following her departure and struggling to fill the vacancy she created. The Court regards Mr Jerry Bunting’s reply to the Court’s question in this regard as indicative of an ongoing and deep animus on his part against the Complainant.

Accordingly, the Court upholds the Complainant’s complaint of penalisation within the meaning of section 26(1) of the 1997 Act and measures the appropriate compensation, having regard to the gravity of the effect of the penalisation on the Complainant at €20,000.00. This award is made by way of compensation and is non-taxable.

The Court so determines.

The Court, having considered the Complainant’s payslips submitted to it, also finds that the Complainant was not paid correctly for the public holiday that fell in October 2017 and awards the Complainant €92.00 for this breach. As this compensation relates to an underpayment it is taxable.

The Court so determines.

The Court finds that PW/19/38 is not well-founded.

The Court so determines.

Finally, in respect of CD/19/51, the Court finds that it was reasonable for the Complainant in all the circumstances to regard herself as constructively dismissed and recommends a non-taxable payment of €1,000.00 by way of redress.

The Court so recommends.

Signed on behalf of the Labour Court



Alan Haugh
MK______________________
16 December 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.