EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Sarah Hickey UD384/2012
Bloomfield House Hotel -respondent
Bloomfield Hotel Company Limited -respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. P. McGrath B.L.
Members: Mr. T. O'Sullivan
Mr. N. Dowling
heard this claim in Mullingar on 30 October 2013, 18 March 2014, 24 and 25 of July 2014
Claimant: Mr. Shane Geraghty BL instructed by
Nooney & Dowdall Solicitors, Mary Street, Mullingar, Co. Westmeath
Respondent: 1st hearing date: Mr. Michael O'Sullivan, ARRA HRD, Castlelost West,
Rochfortbridge, Co. Westmeath
Subsequent to 30 October 2013: Ms. Claire Bruton BL instructed by,
Ms. Elaine McDonald, J.A. Shaw & Co., Marlinstown Office Pk., Mullingar, Co. Westmeath
On the 18th of March 2014, an application was made to the division of the Tribunal for the postponement of these proceedings which were first heard before the Tribunal on the 30th of October 2013 and in circumstances where the Claimant is still on Oath having already given a half day of evidence to this Tribunal on that day. The case had been adjourned to be resumed on the 18th of March 2014.
The claim herein is one for Constructive dismissal arising out of the Claimant’s employment with the Respondent Hotel wherein she commenced her employment in June of 2008 and resigned her employment in or around the 2nd of February 2011 (per the T1A form).
The Tribunal is bound to note that no application for a postponement was made on the 30th of October 2013 date although the reasons for seeking the postponement on the 18th of March 2014 did pertain on the 30th of October 2013.
In essence, the Respondent Company is seeking a postponement of these proceedings for at least an eighteen month period to allow High Court Personal Injury proceedings to run their course. These High Court proceedings have been initiated by Personal Injury Summons which issued on the 15th of February 2013 (a year after the alleged dismissal) and have been brought by the Claimant against the Respondent. The Summons has been opened to the Tribunal and the claim is one for personal injury arising out of the Respondent’s purported treatment of the Claimant in the workplace.
It has been put to the Tribunal that the pleadings outlined in the Personal Injury Summons are almost the exact same as the evidence given by the Claimant at the oral hearing in October of last year. The Respondent makes the case that at some point in the future the High Court will be asked to hear the exact same evidence and facts which this Tribunal, an “inferior” Tribunal (no offence taken), will have already heard. It has been put to the Tribunal that this Tribunal, in the course of it’s own determination may make findings of fact based on it’s own assessment of the evidence. The Respondent has expressed concern at the prejudicial nature of any findings of fact and in particular, of course, where the Tribunal makes findings of fact against the Respondent. The Tribunal is not a Court of record and the Respondent expressed disquiet at the proposition that the High Court would defer to findings of fact made by the Tribunal.
The Tribunal has been asked to consider the principle set out Henderson -v- Henderson (1843) 3 Hare 100 which supports the proposition that there should be finality in litigation and that a party should not be twice vexed in the same matter. Mr Justice Hedigan in the case of Cunningham -v- Intel Ireland Limited  IEHC 207 accepted this principle when he said “ Thus all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances”.
The Tribunal is absolutely mindful of the desirability of not duplicating proceedings, but must balance this requirement with the honest exercise of it’s own limited Statutory function and jurisdiction.
In the context of the within proceedings the Tribunal is being asked by the Claimant to make a finding that the Claimant has terminated her Contract of Employment in circumstances where her Employer’s conduct has made it reasonable for the Claimant to do so (see the definition of Constructive Dismissal – s.1 of the Unfair Dismissals Act, 1977). The Claimant must prove her case as the burden of proof shifts to her. Should the Claimant be successful and the Tribunal finds that there has been an unfair dismissal then the Claimant is entitled to redress where financial loss can be attributed to the dismissal (see s.7 of the Unfair Dismissals Act, 1977).
Financial loss is, in practice limited to the remunerative loss or income loss as experienced by a Claimant who has been found to be unfairly dismissed and where such financial loss is attributable to that dismissal (up to the value of 104 weeks). Financial loss in this context does not:-
“encompass any scope for a claim under any heading in the law of torts, nor for the awarding of punitive or exemplary damages.” Per Mr Justice MacMenamin in the case of Stephens v Archaeological Development Services Limited 2010 IEHC 540.
It is worth noting that Mr. Justice MacMenamin in the Stephens case followed the observations of Mr. Justice Lavan in the earlier High Court case of Quigley –v- Complex Tooling and Moulding Limted  1 I.R. The two cases create a line of authority for the proposition that where an employee has acquired a common law cause of action against an employer prior to his dismissal, the cause of action in tort might proceed in the High Court and may exist independently of the infringement of the Statutory right not to be dismissed unfairly. The Tribunal notes that both Honourable Judges of the High Court approved the considered House of Lords decision of Eastwood -v- Magnox Electric plc  3 WLR 322.
It is the established practice, recognised by the parties herein, that redress can only be made in respect of periods of time where a Claimant is available for work and making active efforts to find such employment and indeed the Tribunal makes quite onerous demands of mitigation on the part of Claimants before it. Thus, where a Claimant is found to be unavailable for work by reason of ill-health, the Tribunal is not in a position to compensate for those periods of time. The Tribunal therefore recognises that the question of avoiding “double recovery” should be guarded against at all times. This issue being one raised by Mr. Justice MacMenamin in Stephens as being an important caveat when allowing cases proceed in two distinct fora.
The Claimant’s legal representatives indicated that they recognised that there could be no question of double recovery and that the High Court would not be asked to award damages for periods of time post dismissal where the Plaintiff suffers Financial Loss (as recognised by Statute) attributable to the fact of Dismissal.
It is certainly nuanced, but there is a very real demarcation line to be drawn between the consequential Financial loss suffered by the employee who has been unfairly dismissed and the General damages awarded to the Plaintiff who has suffered personal injury as a result of how she has purportedly been treated at the hands of a Defendant employer. The Tribunal cannot and does not make any assessment in relation to Personal Injury issues – that is the preserve of the Civil Courts. The Tribunal can however, assess Financial loss which is directly attributable to the Unfair Dismissal.
The Respondent further opened the case of Marie Cunningham -v- Intel Ireland Limited  24 ELR 233 to the Tribunal. The Tribunal finds that a clear distinction may be drawn between that case and the line of authority set up by Mr Justice Lavan and Mr. Justice MacMenamin insofar as the Equality Tribunal and the Labour Court on Appeal can assess compensation in the manner more generally attributable to the way in which the Civil Courts might be expected to assess general damages for personal injury. Indeed, in the case of Ntoko -v- City Bank ELR 116 the Labour Court observed it would not be inappropriate for it to consider the Plaintiff’s medical reports in assessing the compensation to be awarded. This could certainly give rise to the possibility of the “double recovery” which is to be avoided.
In response to the Respondent’s application for a long term postponement, the Claimant herself gave evidence to the effect that she was anxious to have her Employment Appeals case proceed as expeditiously as possible. The Tribunal division in its own deliberations had some sympathy for the Claimant. This case was started in October of 2013 and the Claimant had given comprehensive evidence in relation to the workplace relationship. As it happens, not much emphasis has been placed on any health issues which may have arisen and the thrust of the evidence already heard was in connection with the Claimant’s need to establish that she had acted reasonably in opting to resign her position. The Tribunal further had to take into consideration the fact that the time for making such an application was back in October 2013 before the Tribunal had engaged with the process of hearing this case. It would be unfair to the Claimant if she was now being asked to put these proceedings on hold for an indefinite and unknowable length of time. It is noted, in this regard, that the Respondent was vague about when the Personal Injury proceedings might be expected to come on and no effort was made inter partes to come to an agreement about pushing the Civil action on as quickly as possible.
The Tribunal thus recognises that there are Special Circumstances which allow this division of the Tribunal, as a matter of practicality and in the interests of justice and expediency, to refuse the application for the postponement as sought.
The Tribunal has carefully considered the evidence adduced in the course of the four days that this matter came before the Tribunal.
This case comes before the Tribunal on foot of a completed T1A form received in the Tribunal on or about the 24th February of 2012 and which issued in a letter of resignation from the Claimant to the Respondent employer dated the 31st of August 2011.
The letter of resignation asserts that the Claimant was constructively dismissed and the Tribunal having regard to this assertion, must place a burden of proof on the Claimant to demonstrate that the Respondent has behaved in such a way so that she had no option open to her other resign her position.
The Claimant commenced her employment in and around June 2008. It is common case that the Claimant was a good employee and worked her way into a position of responsibility with the hotel owned by the Respondent Company. Issues arose in the course of the employment but these were resolved fairly and amicably within the workplace. In one instance a personality difference between the Claimant and another Manager was accommodated by the Respondent employer by creating a new management Supervisory role for the Claimant. This demonstrates workplace flexibility and also showed that the Respondent was anxious to retain the Claimant as a valued employee. On another occasion the Respondent demonstrated it’s support in opting to “move on” from an issue which had come to light and might have been otherwise damaging to the Claimant and her career in the hotel.
By February 2011 the Claimant was working in her supervisory capacity in the restaurant / bar and in particular was doing early morning shifts. At this time, the Claimant was answerable to her own manager and to the General Manager Mr. RB, who in turn would have been answerable to the Hotel Director Mrs. LC who was a very hands on presence in the hotel and who, it is generally agreed, had a very much “open door” policy.
On the morning of the 22nd February 2011 the Claimant was supervising the breakfast shift in the hotel and together with 3 or 4 waitress staff were seeing to upwards of a hundred bed and breakfast guests.
In his evidence RB, the General Manager, stated that the restaurant in his opinion was not being run efficiently on this particular morning. In his evidence RB stated that he arrived at the restaurant after 9 and was surprised to see a long queue of guests waiting to be seated, a lack of staff on the floor and as he moved through the restaurant up to two guests stopped him to give out about the lack of service and the “disgraceful” delays.
On his own admission RB accepts that he overacted and when he found the entirety of his floor staff hovering around the toaster inside the kitchen he lit on the Supervisor (the Claimant herein) and in no uncertain terms gave her a dressing down in front of everyone. RB accepts he used inappropriate language and a raised voice. In his evidence RB says he knows that was unacceptable and he regretted it. He said he reacted in frustration with the general chaos he perceived to be taking place on the floor.
There can be no doubt that the Claimant was extremely shocked and surprised at the dressing down she got that morning. She did not believe the breakfast service was inadequate and believed that the attack was disproportionate, personalised and unfair.
The breakfast service continued with RB at the helm and it is accepted that things were regularised within 5 to 10 minutes which would suggest that things had not gotten out of hand to the extent that RB had believed it had.
The Claimant in her evidence stated she was rattled and embarrassed by what had happened. The Claimant did stay on and finished out breakfast and continued with the set up for a large funeral party expected later that day.
Again, during the course of the set up RB appeared down to the restaurant and became agitated and upset at what he perceived to be a lack of progress of preparations on the part of the floor staff.
The Tribunal does accept that RB was unfair in this treatment of the Claimant at the time. The funeral was not due for some time and the fact that the tables were not ready was not an insurmountable difficulty. There was no suggestion that the Claimant and her staff were not working all morning. They had cleared away one service and still in the process of setting up for the next one. The Tribunal fully accepts that the Claimant, who had three to four years experience of working under catering pressure, would have had the set-up complete and double checked with everything in place before the guests arrived (which in fact is ultimately what happened).
In his evidence RB stated that it would have been evident that he was frustrated that not all the tables had been set up, that perhaps too many glasses had been used and some cutlery was missing at some seats. He addressed the issues with the Claimant as the Supervisor. RB states he was calmer and more rational during this interaction whilst the Claimant in her evidence said that for her it was another terrible scene where he used bad language, shouted at her and eventually she had to run out in tears. The Claimant in her evidence said “he exploded”.
It is common case that the Claimant did not work again that day. Ultimately, in a state of great distress, the Claimant was brought into hospital having suffered with some sort of panic attack.
The next day February 23rd 2011, the Claimant came into the workplace. To his credit, RB knew he had to make reparation for what had gone on the day before. He asked the Claimant to meet him to “talk” and this was subsequently arranged in the presence of MmcC. The Claimant said she was not expecting the meeting when it happened though accepted that RB had said to her earlier that they would need to talk.
The Claimant and RB largely agree on the gist of what was said in the meeting and in particular RB apologised for what had happened the previous day and that he never expected the reaction he got. There was a suggestion that extraneous factors in the Claimant’s personal life were at play here though this was never established. RB reminded the Claimant of all the times he stood by her and suggested that in order to manage he could not walk on eggshells around her. MmcC did intervene and asked the Claimant to listen to what RB was saying.
Unfortunately, although the meeting as intended to be reconciliation the Claimant appears to have left in a distressed state and whilst RB had told her to take a couple of days off to recover the Claimant in fact never came back.
The Tribunal fully accepts that there was some legitimacy to the Claimant’s reasoning for not returning to the workplace at that time. The Claimant had been on the receiving end of some fairly robust criticism. That said, the Tribunal is not blind to the highly pressurised nature of this type of workplace where the excessive demands of the service industry often leave tempers frayed and language excessive.
The Tribunal found the evidence of LC to be of some value. As hotel Director LC knew both parties well enough. LC had not been aware of the interaction on the 22nd February 2011 and only became aware of the meeting of the 23rd after RB came to her and gave his account of same. LC was in an unenviable position. This became more urgent when the Claimant’s date for a return to work passed and the sick certificates started to arrive.
The Tribunal accept that LC wanted to do the right thing and in this regard engaged the services of some HR company. LC rang the Claimant and left a message on her voicemail, and critically, LC wrote a letter of the 4th March 2011 which was clearly intended as an attempt to try and resolve matters or at last discuss matters in an appropriate way. LC’s attempts were rebuffed and whilst the Tribunal has been invited to consider the Claimant’s delicate and fragile state of mind as allowing for the lack of communication, the Tribunal cannot ignore the sincerity of the overtures made by LC.
It was well established during evidence that the Claimant knew that the Respondent’s grievance procedure was developed and operated in the workplace. The Claimant did not activate the grievance procedure although she quite clearly perceived she had a grievance to record against RB.
The Claimant further knew and liked LC but opted not to engage in any discourse, of any nature, at that time. Instead the Claimant engaged a legal representative who in turn, and somewhat surprisingly, did not engage with LC in any meaningful way.
The Tribunal does not find any fault rests with LC and whether fault rests with RB is not relevant in circumstances where LC was given no opportunity to explore any issues which could and should had been raised by the Claimant either through her solicitor or in her own way and certainly before a resignation was proffered.
The Tribunal therefore finds the Claimant was not constructively dismissed, therefore the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal