EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Katrina Burns -claimant UD2166/2011
ACM Community Development Society Limited -respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. Lucey
Members: Mr. W. O'Carroll
Mr F. Dorgan
heard this claim at Limerick on 17th June 2014
Claimant: In Person
Respondent: Mr Kenneth Buchholtz, Campbell International, Human Resource Consultants, Cloncoul House, Ennistymon, Co. Clare
The respondent is a community development programme that operates a crèche and after school care for children. The respondent has a voluntary Board and has Committees to oversee the programme. The claimant worked in the respondent from August 2007 until she resigned with notice in May 2011.
As this is a case of constructive dismissal it is up to the claimant to give evidence first.
The claimant commenced employment in August 2007 as a childcare worker, her employment proceeded as normal until her manager left and a new manager joined the respondent in 2009. The claimant was concerned about the new managers ‘way with the children’.
As a result of her concerns the claimant approached the Chairman (MG) of the respondent committee in April 2011. MG ‘avoided’ the claimant after that meeting until another meeting was held 6-7 weeks later with MG and the Chairman of the childcare committee (IC). At this meeting the claimant gave examples and outlined her concerns about her manager’s treatment of the children. The list of examples provided is not exhaustive, the claimant also complained about the manager’s treatment of the staff.
The claimant followed the first part of the grievance procedure which states, ‘The manager should approach their immediate supervisor when a grievance first arises.’ The claimant was asked to formalise her complaint at the meeting of the 12th of May but declined this request as she thought it would adversely affect her working life. The claimant does not believe her complaints were handled in a confidential manner. The claimant feels that the respondent ‘let her down’ by not treating her complaint seriously or in a confidential manner. There was no recourse against the Chairman’s treatment of the claimant.
The claimant felt that she wasn’t getting the support from the Board. She had been left without a contract until the meeting on the 12 May 2011 where instead of dealing with her concerns, they discussed the claimant’s contract. The claimant requested a year off as she could no longer work with the respondent. The claimant accepts she registered her business name on the 30th of May 2011. She had decided to open a shop as she could no longer work with the respondent given the circumstances and the inactivity of the Board. At the meeting of the 12th of May the claimant informed the respondent that she would be resigning the following Friday and would be working out her notice.
The claimant gave evidence of her loss and her attempts to mitigate her loss.
Another 2 ex-employees gave evidence of their interaction with the Board and the manager concerned. Evidence was given as to the nature of the politics between the various Board members, the staff and the Fás liaison officer.
The respondent Chairman (MG) from 2009-2012 gave evidence. In or around April 2011 the claimant approached MG in her office and outlined 2 complaints against her manager concerning her treatment/interaction with the children. MG rang (IC) as the Chairman of the childcare committee immediately. They intended on ‘quietly investigating’. To do this they spoke to parents of the children; both complaints were investigated. The wider committee were not informed of the complaints in order to maintain confidentiality and as it was an informal complaint the committee did not want the complaint details.
At the meeting of the 12th of May 2011 the claimant was informed that after investigation they found no substance to the complaints but would like her to formalise any additional concerns/complaints she had. The request for the complaints in writing was made so they could see the substance of the complaints clearly. The claimant did not make any complaints about the manager’s treatment of her or other staff members.
The claimant then asked for a year off as ‘she was burnt out.’ The claimant was informed that they could not guarantee her position for her return. The claimant then informed them that she was going to give her resignation to her manager; they asked her not to and presumed she would reconsider in a few days.
MG gave evidence of her own interaction with the manager and the other staff. The claimant was difficult to manage as she ‘liked to get her own way’ but was good with the children.
The Chairman (IC) of the childcare committee, a sub-committee of the respondent gave evidence. In April MG informed her about the complaints against the manager made by the claimant; IC was shocked as only 2 months previous when asked, the claimant had told her that everything was great.
As part of the investigation into the complaints IC asked her daughter (as her 2 grandchildren used the service) about the situation and the manager, she also asked a few of her daughter’s friends who have children that use the service and also the local health nurse. The complaints could not be substantiated.
IC requested the claimant to make a formal complaint if she believed that her complaints were that serious. The claimant refused saying that a formal complaint would mean she would no longer be able to work for the respondent. IC agrees that the claimant ‘could be difficult.’
Having carefully considered the evidence the Tribunal find that the claimant falls short of the high bar set to prove Constructive Dismissal. The claimant should have followed through with the complaints procedure.
The claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal