EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Kathleen Hegarty – Claimant UD2093/2011
Clare Civil Engineering Company Limited – Respondent
Clare Civil Engineering Limited - Respondent
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Kearney
Members: Mr. W. O'Carroll
Ms. H. Henry
heard this claim at Ennis on 23rd May 2013 and 9th April 2014
Mr Gearoid Howard, Crimmins Howard, Solicitors,
Dolmen House, Shannon, Co Clare
Hayes, Solicitors, Lavery House, Earlsfort Terrace, Dublin 2
It was the claimant’s position that due to the respondent failing to deal with her complaints against a colleague the claimant had no option but to leave and considered herself constructively dismissed.
The claimant commenced employment with the respondent on 28th May 2007 and deemed herself constructively dismissed on 14th October 2011. It was alleged that the claimant was badly treated by her colleague for quite some time and that it became so bad that she complained to the manager, who was not often on site, on 31st March 2011 telling him that she was being bullied by this colleague to such a degree that she was afraid to come to work and also her home life was being affected. The manager told the claimant that it sounded like she was being bullied and that he would take advice and get back to her about this. On 8th April 2011 the manager told the claimant that he had a word with her colleague. The colleague got worse after this and the manager never contacted the claimant again.
On 3rd May 2011 the claimant put her complaint in writing by way of an e-mail to the respondent but got no response and consequently went out on sick leave from 6th May 2011 never to return to work with the respondent. The claimant’s Doctor certified her as suffering from severe stress. The claimant also attended a psychiatrist on 4 occasions.
The manager still did not contact the claimant so she went to the Citizens Information Centre (CIC) to seek advice. The CIC phoned the claimant’s manager and were told that the claimant would hear from the respondent. Subsequently the respondent acknowledged the claimant’s complaint and sent her a copy of the employee handbook. This was the first time the claimant had received the employee handbook. It was also suggested by the respondent that mediation be entered into and the claimant phoned her manager to say she was in favour of this. The manager was to set this up but did not revert to the claimant and the claimant went back to the CIC for further advice. The CIC phoned the manager again and left a voice mail when the phone went unanswered. The manager then sent a text message stating that he would organise mediation. However by July 2011 the claimant had not heard back so she again went to the CIC for advice. The CIC rang the manager and were told that documents would be sent out in the 1st week in August. The claimant never received any documents from the respondent and decided to engage a solicitor who wrote to the respondent on 8th September 2011 informing them that if they did not initiate an investigation into the claimant’s complaint of bullying, within seven days, that they she would have no choice but to lodge a claim for unfair dismissal. There was no response from the respondent and the claimant’s solicitor sent reminders on 14th September 2011 and 26th September 2011. There was no reply to any of these letters and therefore the solicitor wrote another letter on 6th October 2011 stating that if there was no reply to this letter that the claimant would regard herself as having been dismissed from 14th October 2011. There was no reply to this letter. Accordingly the claimant regarded herself as having been constructively dismissed by the respondent on 14th October 2011.
The manager for the respondent told the Tribunal that he met with the claimant on 31st March 2011 and that this was the first time he became aware of any problem the claimant was having with her colleague. However he denied that the claimant had used the term bullying but she had referred to her colleagues mood swings. The manager was mostly based away from the office in which the claimant worked but confirmed that he spoke to the claimant’s colleague who denied any wrong doing towards the claimant and told the Tribunal that he did not go back to the claimant until after he received the first phone call from the CIC, at which time the claimant was out on sick leave due to stress.
It was the manager’s position that the claimant was unreasonable in refusing to engage in mediation and confirmed that, despite what was written in the letter to the claimant, she and her colleague were not expected to pay for this mediation but that the company would pay for this.
The manager confirmed that he did not reply to any of the letters from the claimant’s solicitor because he felt that it had gone the legal route by then. He also confirmed that he did not consult with his own solicitor until after he received notice that a claim had been lodged with the Tribunal.
In relation to a letter from the respondent’s solicitor to the claimant’s solicitor on 18th June 2012 offering re-engagement the manager felt that this was a reasonable offer and one that the claimant could reasonably accepted. He did not feel that there had been a breakdown in trust at this point.
Having carefully considered the evidence adduced at the hearing the Tribunal finds that, on the basis of the complaints of the treatment of the claimant by a co-worker and the consequential failure of the respondent to deal with these complaints in a reasonable manner and within a reasonable time frame, the claimant was entitled to consider herself dismissed in all the circumstances on the 14th October 2011.
The Tribunal is satisfied that the claimant engaged with the company’s grievance procedure. The Tribunal finds that the conduct of the respondent in dealing with her complaints fell well below what the Tribunal considers the behaviour in such circumstances of a reasonable employer to be.
Further the Tribunal do not consider the offer to re-engage made by the respondent on 14th February 2012, which offer was clarified on the 18th June 2012, a fair matter to be taken into account in light of the history in 2011 and the outstanding complaints which had not been dealt with in any reasonable way by the respondent. Clearly the relationship of trust and confidence had broken down.
Therefore taking all the circumstances into account the Tribunal finds that the claimant was unfairly dismissed and awards her €24,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal also considered the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 and finds that as the claimant left her employment without giving notice to the respondent there is no obligation on the respondent to pay the claimant in respect of minimum notice. Therefore the claim under these Acts fails.
The Tribunal notes that the claims under the Redundancy Payments Acts, 1967 to 2007 and the Organisation of Working Time Act, 1997 were withdrawn by the claimant.
Sealed with the Seal of the
Employment Appeals Tribunal