EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Catriona Dwan -claimant UD1983/2011
Youth Development Project Limited T/A Thurles Community Training Centre –respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms E. Kearney B.L.
Members: Mr. J. Hennessy
Ms S. Kelly
heard this claim at Thurles on 30th April 2013 and 14th October 2013 and 15th October 2013
Claimant: Ms Noreen Carroll, Citizens Information Centre, St Michael Street, Tipperary Town, Co Tipperary
Respondent: Ms Cathy Maguire B.L. instructed by Ms Kathleen Burke, Patrick J O'Meara & Co, Solicitors,
Liberty Square, Thurles, Co Tipperary
The respondent is a community training centre and deals with, amongst other things, youth development. The claimant was employed as a Learner Advocate in which role she worked with youths. In this role she helped them plan for their careers and arranged for work experience. The claimant is making a claim that she was constructively dismissed under the Unfair Dismissals Acts, 1977 To 2007.
Summary of evidence:
The claimant gave evidence to the Tribunal. She worked for the respondent since 1985. She commenced working as an Art teacher. Later on during her employment she became an Acting Advocate. The claimant described her role and her duties.
She worked “over and above” what was expected of the role, was “extremely dedicated” and “passionate” about her work.
She did not have any difficulty in “20 years” until the events unfolded that led to her leaving. The original issue began in the car park whereby the catering tutor, Ms R, parked too near her car and caused her difficulties in that she could not open her car door properly. She reported this to her manager. At some point she spoke to Ms R and told her to have respect for her car and Ms R shouted at her. Ms R also told her that over the years she (the claimant) had no interest in her family. The claimant told the Tribunal that she could not understand why Ms R would want her to have an interest in her family, and it was “bizarre really”.
The same type of incident regarding parking and Ms R happened again and she photographed the cars. She showed this to her manager and he asked her inquiringly, “What can I do”. So she “Just put up with it”. This type of incident recurred during 2009 and 2010 and it was not resolved.
The next matter that occurred concerned the learning portfolios of the students. The claimant explained that she had been working as a counsellor over the years but at some point in time put her counselling work to one side and focussed on the advocacy as the main point in her work. She had previously agreed with a manager that she could make assessments of the students. The students asked her who would see their portfolios (work/personal planners/career planner) and she told them that it would only be seen by an external assessor.
However a problem arose circa March 2010 whereby she was in her manager’s office and he asked that she leave the portfolios in his office. A disagreement ensued and he “became quite aggressive”. She explained to him that the information was the confidential information of the young people. She arose to leave and he told her to sit down. He told her that he wanted the portfolios and she told him that she would rather burn them, however she explained to the Tribunal that in saying that she would do that “it was a reaction”.
The Tribunal asked for clarification as to why the situation “exploded”. The claimant replied that she did not know why, that the folders belonged to the young people and the folders contained their skill sets and that they wrote into their folders.
Another aspect or incident was that her manager also told her to hand over her work sheets to Ms S. The claimant explained that Ms S had been harassing her and that her manager knew this because she had told him of this.
The claimant gave extensive evidence as to further investigations, meetings and correspondence regarding the portfolios. The claimant was represented at some point in time by a solicitor but this was just up until April 15th. At another time a trade union official represented her.
The claimant said that she offered to sit down with someone to do the work sheets and portfolios but this was refused. She was scared that the students work would fall into others hands. She felt that she was placed into a position of trust in her job description and in the code of ethics.
Subsequently on another related matter she received a phone call from her manager to tell her that Ms S was making a complaint against her for harassment.
The claimant gave evidence as to another situation that arose in the classroom. It culminated in Ms S and Ms R sharing a classroom with her and this was “the worst situation” that she “was ever in”.
The claimant told the Tribunal about her efforts to obtain mediation and related matters.
The manager of the respondent gave evidence to the Tribunal that he has held the role since April 2008 and oversees nine staff members. The claimant was employed as a learner advocate with the respondent since 1985. The respondent’s literacy programme is directed through the National Adult Literacy Agency and Fás is the funder of the programme. The respondent was asked to implement literacy policy in all work undertaken. In or around early 2010 the manager asked Ms S to undertake this duty which entailed ensuring that all documents and tools used by the learners were consistent and conformed to literacy requirements. Ms S was to correlate all the documents used by the staff. Ms S reported to the manager that she had received positive feedback from all of the staff except for the claimant
The manager met with the claimant on 9 March and asked her for the documents but the claimant said that she was not prepared to provide them as the worksheets she had used were devised by her and were confidential to the learners. The claimant assured the manager that the worksheets complied with literacy requirements. It was the manager’s evidence that the claimant told him if he insisted she would withdraw the portfolios and there would be no worksheets, as she would burn them. The claimant did mention to him that she was concerned about the confidentiality of the worksheets but the manager told her that he was only seeking the blank worksheets prior to completion by the learners and that therefore there was no issue of confidentiality.
The claimant approached the administrator on 10 March 2010 and stated that she was not going to deliver certification on the portfolios. When the manager met the claimant about this she became irate. He reminded her that quality assurance was part of the productivity agreement. Following this meeting he wrote to the claimant and asked her to attend an investigatory meeting on 1 April 2010 in relation to her withdrawal of 37 learner portfolios from assessment and her continuing refusal to provide the documentation as requested for integrating the literacy project. During cross-examination it was put to the manager that the PIPs worksheets were drawn up by the claimant in her own private practice. The manager stated that blank portfolios and sample answers would have to be available so that the module could be taken by another instructor. The portfolios were usually left in the assessor's area. It was the claimant’s evidence that she had an agreement with the previous manager where she handed the portfolios to the assessor without the manager seeing them
Both the claimant and the respondent were represented at the meeting on 1 April 2010. It was denied by the manager that there were raised voices at this meeting. At the claimant’s request the meeting was adjourned for a period of time and the respondent’s representative approached the claimant’s union representative during the break to see if matters could be resolved but this was unsuccessful.
Following this meeting the manager wrote to the claimant and reassured her that the documents would be treated with absolute confidentiality even though by that point he was simply seeking blank worksheets and not the learners’ portfolios. The claimant engaged a solicitor from that time and extensive inter party correspondence was opened to the Tribunal.
Representation on behalf of the claimant wrote on 19 May 2010 stating that the documents would not be put forward. The respondent contended that as the employer it was entitled to see the worksheets to ensure they met the literacy programme requirements. This was conveyed in a letter of response. The claimant was asked to produce the portfolios by 10 July 2010 as they were mandatory modules of a FETAC level 3 course. Without the portfolios it would not be possible for the students to receive certification. In or around August 2010 the claimant provided the portfolios to the external assessor. A letter from the claimant’s solicitor on 29 October 2010 stated that the claimant was content to hand over the worksheets and this was done but the PIPs were never handed over. However, the disciplinary process was never progressed beyond the meeting on 25 March 2010. In reply to questions from the Tribunal, the manager stated that he wanted the portfolios available only from a quality assurance point of view in relation to the procedures and the paperwork and not the content completed by the learners. He denied that the claimant was asked to leave them on a shelf in an open office.
Subsequently, Ms S raised an issue with the manager about difficulties she was experiencing working with the claimant. The manager went through the grievance procedure with her. As per the employee handbook Ms S approached the claimant on 15 June 2010 to discuss the issue but this was unsuccessful. An offer of mediation was made to Ms S and the claimant but Ms S declined the offer of mediation and invoked the grievance procedure in writing on 8 June 2010.
The claimant was absent on sick leave from the time of October 2010. An independent mediator (W) conducted an investigation and a report issued in December 2010 with the finding that the complaint made by Ms S did not constitute bullying as defined by the employee handbook. Ms S subsequently appealed the findings of W’s report by letter dated 21st February 2011 from her union representative. An independent management consultant (D) was engaged to hear the appeal. It was the claimant’s evidence that she felt unsafe in her employment.
On 7 January 2011 representation for the claimant wrote requesting the Board to invoke the provisions of clause 6.3.3 of the employee handbook referring to resolving problems by mediation in this instance to resolve the underlying difficulties with the manager whom the claimant lodged a complaint against. In evidence the manager stated that he was surprised at the complaint but he was satisfied for mediation to take place.
During cross-examination it was put to the manager that he did nothing about an incident in the car park with another employee Ms R, which the claimant brought to his attention. The manager replied that he spoke to both the claimant and Ms R. He outlined that there were no reserved car park spaces and that they should park correctly in the parking spaces. This was a small matter causing conflict and the incident could be mitigated. He asked them to maybe not park beside each other and to park properly. The issue would stop for a month or two but would then arise again. The claimant brought the manager to the window one day to show him that Ms R had not parked correctly in that the wheel of her car was on the white line of the parking space but the claimant’s car was unaffected. The manager said to the claimant that she should be less sensitive and pointed out that other cars in the car park were also parked incorrectly. However, the claimant perceived the way in which Ms R had parked her car as bullying.
In relation to the difficulties between the claimant and Ms S the manager stated that he did not witness aggression towards the claimant by Ms S. He was called to a classroom on maybe two occasions to sort out a timetabling issue and he considered the issue to be confusion over a timetable rather than conflict.
The Chairman of the Board for the past 15 years gave evidence that the Board became particularly involved following the complaint against the manager. In addition the Board accepted the finding of W’s report and informed the parties of the outcome of the report. A number of steps were taken following this report including dignity at work training as outlined in letter dated 9 February 2011. The Board also invited both parties to mediation but this did not take place as Ms S appealed the findings.
The Board wrote to the claimant on 16 March 2011 asking her what outcome was being sought from the mediation with the manager. The Board also wrote to the claimant on 18 May 2011 referring to the letter of 16 March 2011 and requested that a response be received without any further delay in order that matters be progressed. It was the Chairman’s evidence that when the claimant lodged the complaint against the manager the Board were happy to give mediation but wanted to know what the claimant hoped to achieve from it. If her reasons for seeking mediation were not to have to provide the portfolios the Board was not satisfied to offer mediation on that basis but if it was to normalise the working relationship, then it was satisfied to put mediation in place.
The claimant attended for an occupational health assessment on 30 March 2011. The physician stated that he was “..of the opinion that there is no absolute contraindication for the claimant’s return to work but I felt that with her on-going view of the difficult work situations, a return to work at this stage is unlikely to be successful”
A letter dated 24 June 2011 issued to the claimant. This letter again asked what outcome the claimant sought from the mediation and informed her that if a response was not received by 5 July the complaint would be considered withdrawn. In light of the occupational health report the Board suggested a phased return to work by the claimant. This was devised by the Board and advisers, to make it as easy as possible for the claimant to return to work in that on days she would return Ms S would not be there for a period of time. Also a job description was enclosed to try and clarify the claimant’s job within the centre. The Board were prepared to amend this job description following suggestions from the claimant and as a result the issue of confidentiality was later included. The letter of 24 June 2011 invited the claimant to attend a meeting on 11 July 2011 with a view to a resumption of duties on 18 July 2011. The Board also stated that it would contact the claimant about the outcome of D’s report following a Board meeting on 6 July 2011.
Subsequently, the management consultant (D) allowed the appeal on the finding that the behaviours and interactions between the claimant and Ms S undermined Ms S’ right to dignity at work. This report was dated 25 May 2011. Given this finding the Board decided to embark on a disciplinary process as the Board felt it had come to the end of the line and it seemed that the matter could not be resolved. The Board took advice at all stages and made its decision based on that advice.
Meanwhile, representation on behalf of the claimant again requested that mediation be put in place between the claimant and the manager. A further letter dated 5 July 2011 set out the reason why she sought mediation but stated that the claimant was willing to return on a full-time basis with immediate effect.
In light of this the Chairman of the Board wrote to the claimant stating that she could consider the meeting of 11 July 2011 as a return to work meeting, that as per procedures the claimant would be meeting directly with the manager about her return to work. An agenda of the meeting was included. However, the claimant did not attend the meeting but her solicitor wrote a letter requesting a meeting with the members of the Board. It was the claimant’s evidence that she was prepared to return to work but only if mediation with the manager took place first prior to her return.
The Chairman on behalf of the Board wrote to the claimant on 8 August 2011 regarding D’s report. The Board accepted the findings of the report in full and it was the decision of the Board that the breach of the dignity at work policy warranted disciplinary consideration and it was indicated to the claimant that a disciplinary meeting would be held. A letter from the claimant’s solicitor indicated that she intended to appeal the finding. Representation for the employer wrote that that the internal appeals process had been fully availed of. The letter asked the claimant to confirm her participation in mediation by 7 September 2011 to resolve matters with the manager.
The claimant’s solicitor wrote on 25 August 2011 stating the claimant would not be returning to work until such a time as she had appealed D’s report externally. It was the claimant’s evidence that she did not bully or harass Ms S. The claimant stated in evidence that she did not accept the findings in the report. In addition, from her viewpoint nothing had been done -she had been asking for mediation since January 2011 and by this stage she had given up. She stated that she was at a loss that the Board wanted her to meet with the manager about returning to work in light of this. The claimant felt unable for this as it seemed to her that the manager continually sided with Ms R and Ms S.
The claimant then wrote a complaint to the advocacy Monitoring Committee dated 13 September 2011. The Chairman in evidence stated that this is an external monitoring committee and is not involved in the operations of the centre. When the correspondence came to the Board’s attention it raised issues regarding the claimant’s health. The Board wrote to the claimant on 19 September 2011, referring her for an up-to-date medical assessment in light of the contents of her letter to the advocacy committee. In addition the letter stated that the Board proposed the independent mediation services of the LRC be requested to facilitate the mediation process.
Representation for the claimant wrote on 21 September 2011 stating she would attend the medical appointment and stated “it is good to note that mediation is being arranged” and that the claimant was willing to attend mediation. The Chairman in evidence stated that there was no disciplinary action taken against the claimant for writing to the advocacy committee. The Board sent her for an occupational health assessment with a view to getting her back to work and getting the issues resolved and mediation was offered with a view to this.
After writing to the claimant on 23 September 2011 regarding the job description and the medical assessment appointment on 3 October 2011 the respondent received the claimant’s suggestions for the proposed amendments to the job description in or around the end of September 2011.
It was the claimant’s evidence that she had explained and outlined at the medical assessments that she was unable to relieve the work-related stress she was suffering as the situation with the manager had never been dealt with.
It was the Chairman’s evidence that he was “flabbergasted” when the next letter received was notice from the Tribunal that the claimant had lodged a claim under the Unfair Dismissal Acts on 10 October 2011. No written or verbal resignation had been received from the claimant.
Having listened carefully to the evidence tendered, it is clear to the Tribunal that there were significant interpersonal issues between staff personnel and management at the training centre.
These difficulties had been permitted to fester by management over a significant period of time, and whilst many of the issues taken alone, were certainly minor in nature, the cumulative effect of poor communication, misinterpretation, and a failure to listen by management led to a situation where one employee, the claimant, sufferred stress as a result of the saga which was allowed to continue for a lengthy period, firstly by management, and more importantly , by the Board, whom in the opinion of the Tribunal did very little, over the lengthy time period whilst the issues were before them for consideration and supposed action.
It falls in these types of cases for the Respondent to act in a fair and appropriate manner, with due expediance and take active decisions to deal with inter personal work related situations as they come before them.
The Tribunal find that initally management and thererafter the Board failed in their duty towards the Claimant, and allowed a situation to pertain where an employee was off work on work related stress due to problems in the workplace.
These matters are extremely serious, and the Tribunal find that the Respodent failed to adhere to reaonsable standards of fairness in dealing with the Claimant.
The Tribunal find it unfair to expect the claimant to set out what “she wanted out of mediation”. It was clear from the Claimant’s evidence that she used the term mediation in a loose, simplistic fashion. The Tribunal believe that she just wished to have a meeting to see what could be done. Holding an employee, who is party to sigificant interpersonal work issues, and is suffering stress as a result of same, to this requirement, and thereafter informing her that they would shut down her complaint within a specified time, if she did not comply was unfair in the circumstances bearing in mind the individuals concerned. This only exacerbated an already hugely difficult situation.
It is clear that new management did not suceed in effecting a good work environment, as the claimant had some 25 years of service without incident. Further it is clear that the Board only sat up when the Claimant complained to the Advocacy Monitoring Committee.
The Tribunal find that due to a total loss of faith in her employers, and a consequential ilness, it was reasonable for the Claimant in all the circumsntnaces to leave her employment.
Thererfore the Claimant is entitled to suceed in her claim and consequentially the Tribunal award her €18,000.00 in compensation under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal