EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Sinead Phelan -claimant UD1503/2011
against
Cahir Developments Association Limited -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Meghen
Members: Mr. J. Hennessy
Ms S. Kelly
heard this claim at Thurles on 6th February 2013
Representation:
Claimant: Ms E. J. Walsh BL instructed by, English Leahy, Solicitors,
8 St Michael Street, Tipperary Town, Co Tipperary
Respondent: Mr. Johnny Walshe BL instructed by Nolan Farrell & Goff, Solicitors, Newtown, Waterford
Donal T Ryan & Co, Solicitors, 89-90 Main Street, Cashel, Co Tipperary
Background:
The claimant worked as a leisure centre assistant/ receptionist. The respondent is a local council sponsored gym, pool and leisure centre. The case is one of constructive dismissal and the claimant is to give evidence first. She contends that she was forced to leave her position because of bullying inflicted on her by her two supervisors and her manager.
The respondent contends that difficulties did exist from March to May 2011 which first came to light in March 2011 when the claimant brought these to the attention of her manager (TS). TS immediately facilitated a meeting of all staff excluding the supervisors. TS briefed the staff and he then left. TS returned with the chairman and they were given seven issues which mostly centred on poor communication. Over the next few days the issues were addressed and it was agreed by all that they start afresh.
On 10th May TS saw the need to call another meeting of all the staff including the supervisors and expressed his disapproval that people had not moved on as was reflected in the poor atmosphere which was impacting on the business, in the absence of hearing issues he assumed there were none and called on all staff to do their jobs or they would find others who would. The claimant resigned on that day. The claimant was asked to re-consider. The claimant was offered mediation. The claimant was asked to participate in an exit interview and an investigation, she declined all.
In giving evidence the claimant explained her qualifications and that she worked as a receptionist She did not get a contract of employment (COE). She was not given grievance procedures or bullying and harassment policies.
Her reception supervisor was MON and the gym supervisor was MBW and they got on well. This changed in September 2010. Communication between staff and supervisors and management was deteriorating. She raised matters with MON MBW and TS. She had a “good few conversations” with MON and TS on how to improve.
There was a breakdown of communication between her and MON in May 2011. They decided to “put it behind us and move on”.
At some point the staff made a list of issues which were opened to the Tribunal:
“(1) issues being brought to staff and no help being given: i.e. Sports Day; that’s a great idea, to run with it and no help is forwarded. Full organisation left to no one individual. No acknowledgement for that added mile
(2) Game playing: Not printing documents or hiding rubbish etc. to see if staff will do it. …
(3) Sick days: Staff who are sick are expected to get their own cover while being out.
(4) Communication: Issues with communication book. Notes being left with big question marks etc. Staff feel they can’t do anything right. If you follow a note you are wrong, if you don’t you are wrong.
(5) Atmosphere: Simple courtesy of saying hello commented on by all staff. Sets tone for the day. Impacting on customers also….
(6) Roster. Roster should be for hours only. Notes should not be put on roster, Change have been made to rosters at weekends and not communicated to staff. Whose responsibility is it?
(7) Breaks. Breaks are not being got at weekends. We are being docked but they are not actually being taken.”
The claimant gave evidence of what transpired after this and before a meeting called for 10th May 2011.
A document of a statement of TS was read at the meeting. At the end of the document:
“So from here, all I can say is that things have to improve. We can only ensure the success of this business by focusing on the future. And we can only do so with a fully committed workforce that works as a team. So either work together or do the right thing and look for an alternative workplace. It really is as simple as that.”
Regarding the grievance procedures she was not given a copy of these at the meeting. When the statement was made she knew then that “it was all over no matter what we did”. She took TS’s offer to look for alternative employment seriously. At some point in or around 10th May 2011 she resigned. She was asked to put her resignation in writing.
Respondent’s case:
The general manager of the respondent gave evidence to the Tribunal. He explained that the respondent is a childcare centre with gym and is non-profit organisation with charitable status. They have 45 employees of which 26 are on FÁS schemes. The funding for these comes from FÁS and the respondent re-claims their wages from FÁS.
The claimant was very good at her job and was in her second year with the respondent.
The witness was asked about the claimant’s concerns regarding no formal grievance procedures and the witness agreed that they had no formal grievance procedure and they had identified that as a weakness. If there were any grievances he had an open door policy which the claimant had availed of on many occasions.
Regarding the claimant’s allegation of bullying and harassment by her supervisors he said that he was “absolutely stunned” and she had not raise it when they had met for appraisals in January or February. She did say she had not brought it up because it would come back to bite them. They did facilitate a me4eting to discuss issues for the staff.
Regarding the seven issues on 23rd March “those issues were handled”. The witness re-iterated that the claimant was a very good worker and one that he had “gone to bat for”.
Regarding her resignation they asked her to reconsider and to take part in mediation. He genuinely did not want to see her leave, “she was a fine receptionist and I would employ her again unequivocally”.
In cross-examination the witness agreed that there was no signed contract of employment in 2009.
Determination:
The Tribunal determines that the claim under the Unfair Dismissals Acts, 1977 To 2007, succeeds. Proper grievance procedures were not adhered to by the respondent. No signed contract of employment was produced for a period of the claimant’s employment.
The Tribunal determine that compensation be the most appropriate remedy and awards the claimant the sum of €4,576.00, as being just and equitable having regard to all the circumstances, under the Unfair Dismissals Acts, 1977 To 2007.
This: ________________________ This: ________________________
Signed: _____________________ Signed:________________________
(EMPLOYER MEMBER) (EMPLOYEE MEMBER)
The two continuing members of the division of the Tribunal that heard this claim have assured me that the evidence herein is an accurate summary of that given and that the Determination herein is as was agreed by all the members of the division.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)