EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Employee – claimant UD749/2011
Employer – respondent 1
Employer – respondent 2
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes BL
Members: Mr M. Carr
Mr N. Dowling
heard this claim at Trim on 26th November 2012, 25th April 2013 and 26th April 2013
Claimant(s): Mr Michael Conlon SC, instructed by:
Mr Declan Hegarty
Hegarty & Armstrong Solicitors
Millennium House, Stephen Street, Sligo
Respondent(s): Mr Oisín Quinn SC, instructed by:
Mr John Lynch
Whitney Moore Solicitors
Wilton Park House, Wilton Place, Dublin 2
The determination of the Tribunal was as follows:-
The respondents, a married couple, are the owners of, inter alia, a farm. The farm is approximately 350 acres in size and forms part of an estate. The couple have other business interests, which are the primary concern of the second-named respondent. The first-named respondent had greater involvement with the estate. The claimant was employed as farm manager in 2004. His role included the purchase and sale of cattle and the preparation, subject to the approval of the first-named respondent, of an annual budget. In addition to his salary, the claimant was entitled to the reimbursement of expenses, which included the rent on his accommodation.
The claimant’s employment appears to have progressed to everyone’s satisfaction and he had a good relationship with the respondents. Indeed, he considered it his dream job.
In May 2009 the claimant suffered an accident on the farm when his legs were pinned against a tree by a teleporter. He received serious injuries and it seems that, at one point, serious consideration was given to the amputation of his legs. He was hospitalised for about five weeks during which time there was significant surgical intervention followed by a long period of recuperation. During this time it was made clear to him that his job was being kept and he was paid during his period of absence. Prior to his return to work the first-named respondent required that he be certified as fit for work by his orthopaedic surgeon rather than his general practitioner. In the circumstances and given the nature of his work this does not appear to the Tribunal to have been an unreasonable requirement.
While still in hospital, the first-named respondent told the claimant that a new estate manager had been engaged. This was JM who had worked for a meat factory and with whom the claimant had had a business relationship over the years. She was anxious to tell the claimant herself so that she could explain it to him before he heard it from another source and be concerned. She told the Tribunal that the farm labourer had in the first instance taken care of the farm in the aftermath of the claimant’s injury with the assistance of neighbours. This was not a situation that could continue into the medium term and one neighbour recommended JM, in part because of his business relationship with the claimant. JM was engaged. In or around that time the respondents had been considering scaling back their business activities and travelling more. As a result, the first-named respondent would be less available to oversee the running of the estate. They had been considering the engagement of an estate manager and quickly realised that JM was what they were looking for. The claimant was assured that his job was safe, only that he would on his return answer to JM rather than the first-named respondent.
The claimant gave evidence about two matters that arose before his return to work. Firstly that he was asked to remove his dog from the farm and secondly in relation to his jeep. The Tribunal is satisfied by the evidence given by and on behalf of the first-named respondent in both these matters and is not satisfied that either were such as would justify a claim for constructive dismissal.
The claimant returned to work in March 2010. The first-named respondent was anxious that he ease himself back in for as many hours and days each week that he felt able for. He continued to be paid in full. He felt that he was being given menial tasks, such as weeding and fence-painting. The Tribunal is satisfied that such tasks were always part of his duties. However, JM continued to have charge of the purchase and sale of cattle and the preparation of the farm budget. The lack of responsibility for cattle trading appears to have weighed heavily on the claimant. It was clearly part of the job that he loved and took much pride in. He had won an award for production of beef animals. Further, the attendance at marts gave him, he felt, a status in the community together with a social outlet. It seems to the Tribunal that what had started as a stopgap measure had become a permanent arrangement. JM told the Tribunal that the first-named respondent had made cattle trading his responsibility and that, as estate manager, he now had responsibility for the maintenance and responsibility of the farm. In addition, on his return to work, the claimant told the Tribunal, he no longer had access to his office and his belongings had been removed. Both JM and the first-named respondent told the Tribunal that the farm office had always been and continued to be a communal office from which the claimant was not excluded. Neither knew what had become of his belongings. JM told the Tribunal that, while the filing cabinets were kept locked, the key was on a hook by the door as, in addition to papers, it was where veterinary medicines were kept and access had to be allowed. The Tribunal accepts that it was a communal office and that the claimant was not excluded from it.
Following his return to work the claimant’s expenses and rent were not reimbursed. This was a source of grievance to him. The Tribunal is satisfied that the procedure for reimbursement was that the claimant had to produce vouchers to the respondents’ accountant who would arrange payment. The claimant accepted that after his return he did not produce any vouchers and did not raise the matter with the respondents. The Tribunal is satisfied that the non-payment of expenses could not, therefore, reasonably constitute a ground for constructive dismissal.
The claimant required further surgical treatment in the summer of 2010. Through the ensuing months, though, he appears to have become increasingly disillusioned with the job. He discussed matters with the first-named respondent in September 2010 and with the second-named respondent in December 2010 but there was no, from his perspective, satisfactory resolution. After his Christmas holidays, the claimant was once again on sick leave. He met the first-named respondent in early February 2011 in what he described as a negative meeting. In the course of the meeting he made certain allegations about JM. This meeting appears to have greatly affected the claimant and he was not well after it. At some point thereafter his Solicitor wrote to the respondents in the course of which it was stated that it was the claimant’s belief that the respondents no longer intended to honour his contract and that he had instructed the institution of Unfair Dismissals proceedings. The letter also referred to proceedings for personal injuries and under the Employment Equality Acts.
The Tribunal is satisfied that the first-named respondent was at all times acting in what she thought were the claimant’s best interests. During the course of his lengthy absence she always assured him that his job was safe and paid him all the while. On his return to work she was anxious to ensure that the claimant was eased back in and not over-burdened in any way. In many ways this relationship went beyond that of ordinary employer and employee and was, on some ways, almost quasi-familial. Further, the respondents were certainly entitled to arrange their business as they saw fit, particularly to take account of their anticipated reduced role therein. While the claimant was, to an extent, aggrieved that he had not been given the opportunity to apply for the role of estate manager, the respondents were under no obligation to do so and were entitled to engage the, in their opinion, most suitable person. They were also entitled to ensure that the claimant’s duties were performed both during his absence and during his recuperation in the job. However, the Tribunal is satisfied that the claimant’s duties had, to a significant extent, been taken over by JM and that this was a permanent arrangement. The principal duties of the farm manager were the general maintenance of the farm, the purchase and sale of cattle and the preparation of the annual budget. The claimant was no longer to have a role in the latter two. In reality, control of the farm had passed to JM. The Tribunal is satisfied that this was not a temporary measure pending the claimant’s return to full health but a permanent fundamental change in duties. Of course the claimant could have continued in his reduced employment and been paid as he had been theretofore. However, his real satisfaction in the job was derived from the trading in cattle and their production as beef animals. This was no longer to be his job. This is, in many ways, a sad case where the views of the claimant and of the first-named respondent as to what was in the claimant’s best interests did not coincide. The Tribunal is satisfied that the breach of the claimant’s terms of employment was so fundamental that he was entitled to resign his employment and that such resignation amounted to constructive dismissal.
The Tribunal is satisfied that the claimant took steps to bring his grievance to the attention of both respondents.
It was submitted that this claim to the Tribunal was an abuse of process in circumstances where he had also instituted proceedings under the Employment Equality Acts and two High Court personal injuries summonses. The claims under the Unfair Dismissals Acts and the Employment Equality Acts are mutually exclusive. The claim before the Tribunal proceeded to hearing first thereby prohibiting the Employment Equality claim, a fact acknowledged by Counsel for the claimant. The Tribunal is satisfied that a claim under the Unfair Dismissals Acts and High Court proceedings for personal injury are not mutually exclusive and can only assume that any compensation that it might award would be discounted from any claim for loss of earnings in the High Court proceedings. The Tribunal is not satisfied that this claim amounts to an abuse of process and is satisfied that it is a claim that the claimant is entitled to make.
While the claimant initially sought reinstatement as a remedy, the Tribunal was told that his preferred remedy is now compensation. It seems to the Tribunal that reinstatement would be an unusual remedy in a case of constructive dismissal. That is not to say that it could not be a remedy. In the instant case, having considered the circumstances and the preferences of the parties, the Tribunal is satisfied that compensation is the appropriate remedy. Following his resignation the claimant required treatment for chronic stress and associated conditions which interfered with his ability to find alternative employment. His general practitioner told the Tribunal that the principal cause of his symptoms was his rumination on what he perceived as his unfair treatment. The Tribunal notes, however, that he has been seeking alternative employment.
In the circumstances, and taking account of his ongoing duty to mitigate his loss, the Tribunal awards compensation of €40,000 as being just and equitable in the circumstances pursuant to his claim under the Unfair Dismissals Acts, 1977 to 2007.
In the circumstances of his resignation the claim pursuant to the Minimum Notice and Terms of Employment Acts, 1973 to 2005 is dismissed.
No evidence was adduced to substantiate a claim under the Organisation of Working Time Act, 1997, which claim is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal