EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Janice Kelly – claimant UD707/2013
Charlie Shiels Limited – respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr F. Moloney
Mr F. Keoghan
heard this claim at Dublin on 16th May 2014
Claimant(s): Mr John Wilde Crosbie BL, instructed by:
Mr Coalan Doyle
Doyle & Company Solrs
1 Main Street, Blanchardstown, Dublin 15
Respondent(s) : Mr Fran Rooney BL, instructed by:
Mr Brendan Byrne
B & P Byrne Solicitors
5 Tyrconnell Road, Inchicore, Dublin 8
The determination of the Tribunal was as follows:-
This was a claim for alleged constructive dismissal.
The Tribunal has carefully considered the evidence adduced. The claimant herein worked as a permanent part-time accounts clerk with the respondent company which dealt with the wholesale supply and provision of electrical goods. The claimant had worked the best part of 14 years with the respondent company although there had been a break in service in and around 2005 when the claimant started her family.
The respondent company workforce of circa 38 had depleted to 13 by 2013 and this is undoubtedly in line with the downturn in all tradesmen’s trades in the last four or five years.
The claimant indicated that when she had commenced her employment there were up to four people in the accounts office but from November 2011 the number had reduced to one; being the claimant who worked from 9.15am to 1pm five days a week.
The claimant described how the accounts work could be neatly divided into two sides; the creditor side and the debtor side. By November 2011 the claimant worked exclusively on the creditor side while her colleague Denise worked the debtor end fulltime.
In November 2011 Denise departed and the claimant was left to handle the accounts office on her own. The claimant continued in this role and her evidence was that she knew that there would be too much work for her but that the managing director simply said that given the downturn in business, that he hoped he could rely on everyone to ‘muck in’. The claimant, it is agreed, worked extremely hard and whilst there was always a backlog to worry about the claimant ran the accounts office as diligently and efficiently as she could.
By April 2012 it was clear that certain aspects of the accounts side could not be covered by the claimant and in particular debt collection was not being chased up. The claimant in discussion with her line manager TP and the managing director was asking for back up and was repeatedly asked if she would consider fulltime. The respondent’s evidence was that management opted to get more involved in debt collection as being the identified task which needed attention and they did not perceive any particular difficulty with the claimant’s handling of the accounts office.
The managing director gave evidence to the effect that he only ever expected the claimant to do whatever she could do in the 15 hours a week she was on the premises. The Managing director clearly relied on the claimant’s skill and ability to prioritise what needed to be done and it is certainly common case that the claimant was never ever criticised nor was there ever any issue on how the accounts office was being operated and the Tribunal would accept that. The employer was in fact delighted that the claimant’s work ethic was such that she appeared to be largely covering the work of one and a half roles on a part-time basis.
By December 2012 it is clear that the claimant had worn herself out and having consulted her GP the claimant went out for four or five weeks as a result of ‘stress’. The employer was notified of the fact that she was out on stress but the nature of the stress was only identified and made known to the respondent on the 17th of January 2013 at a meeting that the claimant looked for with her line manager and the managing director and co-director which took place in advance of the claimant’s return to work.
There can be no doubt that it was made known to the respondent that the claimant was unhappy with her workload and that she was nervous and stressed. The claimant had had a flare up of her eczema. A number of potential solutions were discussed and it is clear that the claimant was told that that she should not feel pressurised and that nobody expected her to do more than she could. The claimant was asked again if she could work fulltime and the Tribunal accepts that this would be the best solution from the respondent’s point of view as the claimant was fully trained up and conversant in all aspects of accounts. The claimant was not happy with that solution and suggested instead that as this really was a fulltime position she would happily train a new recruit and would take redundancy thereafter. The meeting closed with the managing director stating he would consider this option.
A further conversation on the 22nd of January 2013 was held between the claimant and her managers. At this time it was made known to the claimant that they did not want to make her redundant and were prepared instead to engage an assistant to work alongside her on a fulltime basis.
The claimant was advised that the financial controller, with whom the claimant had an excellent relationship, was going to recruit a new accounts person and the claimant understood that an advertisement was placed in Fás and that a number of CVs were sent in in response to this.
Six weeks later on the 7th March 2013 the claimant handed in her notice. In evidence the claimant said she did not feel her employer was making real progress with sourcing assistance and that the pressure and stress she was under was not diminishing and she had no alternative.
On considering all the facts as they were presented to the Tribunal in the course of the evidence the Tribunal cannot make a finding that the claimant’s position within the workplace was such that she had no alternative than to tender her resignation. The Tribunal finds that a recruitment process had been entered into and that this was a perfectly reasonable response to the claimant’s disclosure that the level of pressure she was putting herself under was damaging her wellbeing. Of significance is the fact that the respondent only knew of the diagnosed stress in January 2013 and that prior to this would not then have known the claimant was under pressure and there was nothing to suggest she was not coping. As soon as they knew there was a possibility that she was not coping they agreed to get her assistance and it is noted that this assistance did in fact arrive two or three days before the claimant departed the workplace.
In conclusion, the Tribunal must find that the claimant was not unfairly dismissed on grounds of constructive dismissal.
Sealed with the Seal of the
Employment Appeals Tribunal