EMPLOYMENT APPEALS TRIBUNAL
Johanne Reid - Claimant
Nugent Contract Cleaning Limited T/A Nugent Contract Cleaning Limited - Respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Hayes BL
Members: Mr. A. O’Mara
Mr. F. Keoghan
heard this claim at Dublin on 1st December 2014
and 6th March 2015
and 8th May 2015
Claimant: Mr. Mark O’Connell BL instructed by: Niall Kiernan, Lawlor Partners Solicitors, 4/5 Arran Square, Arran Quay, Dublin 7
Respondent: Mr. Eoghan Foley BL instructed by: Molloy Murphy Solicitors, 4 Coolport, Coolmine Business Park, Dublin 15
The determination of the Tribunal was as follows:
A preliminary issue was raised by counsel for the respondent in relation to the time limit to lodge a claim under the Unfair Dismissals Acts, 1977 to 2007.
Having heard submissions and read correspondence submitted between the two parties the Tribunal determined they had jurisdiction to hear the substantive matter.
Dismissal is in dispute.
The claimant gave evidence. She was employed as a part-time cleaner for the respondent’s contract cleaning company from the 7th October 2011. She carried out her main hours of duty in a clients of the respondent’s residential premises in Dublin 11 (D11). However, she also worked in a private residential home for the respondent and another client’s garage. Initially she was employed to work a 19-hour week being paid €9.50 per hour. Over a period of time these hours were reduced to 17 and then 5 hours per week. She received a written contract of employment in February 2012 but had received verbal instructions of her duties on her commencement by the owner of the respondent (AN).
Her duties included general light cleaning and sanitation of the D11 premises. Issues arose in late October 2012 in the D11 premises when a new Manager of the premises (M) commenced work and asked her to carry out “heavier” duties which included re-bagging the industrial sized dumpsters. The claimant told the Tribunal that she had neither the proper apparel nor the health and safety training to carry out these extra duties. She voiced her concerns with AN who said to “leave it with him”. On the 31st October 2012 she arrived for work as normal. An hour later a colleague (R) told her M had asked her to clean around, and re-bag the dumpsters. She and R approached M and told her she had no proper gloves or the clothing to carry out the dirty task. M told her she (the claimant) was the cleaner and was to do as she asked. She told M she had no health and safety training to carry out the task. She finished her shift and left for the day.
The claimant spoke to AN’s sister (S) concerning the issue and was told not to worry. On the following Friday she went to work in the private residence for AN where they discussed what had previously occurred in the D11 premises. AN asked her to apologise to M for not doing the work that was asked of her. He told her she would not be allowed back into the premises until she did as they “were only there to please the client” or there was no job. AN told her to leave the matter with him.
Her working hours decreased but AN continued to pay her for 17 hours per week until the 14th February 2013. He rang her weekly to ask her to apologise to M. She never returned to work on those premises again.
On the 14th February 2013 she received a text message from AN informing her to hold off from attending work in the client’s garage the following day. On the 16th February 2013 AN rang her and informed her the garage owner was not happy with her and wanted another crew to carry out the cleaning work. She asked AN where was that going to leave her as she had few hours of work as it was. The claimant told the Tribunal that AN replied that it was her fault as she had not apologised. She hung up the phone on him. Some time later she contacted a solicitor for legal advice. Correspondence crossed between the claimant’s solicitor and AN.
On the 17th June 2013 she and her husband met with AN and another employee (LM) to discuss the matter. The meeting became heated and “harsh words” were spoken by both parties. She heard nothing further from AN or the respondent company.
The claimant gave evidence of loss.
On cross-examination she again told the Tribunal that there had been no problems working in the D11 premises until M arrived to work there and issued her, the claimant, with extra duties. The claimant spoke to AN about these issues.
When put to her she said she had never verbally attacked, verbally abused or “got into” M’s “personal space” on the 31st October 2012. She had never agreed with AN that she would apologise to her after.
When asked by a member of the Tribunal she said that she was unsure if any medical waste was contained in the rubbish bags contained in the dumpsters. She refuted M had asked her to only cover over the ripped refuse bags in the dumpster with clean bags on the day in question.
A former colleague (R) of the claimant gave evidence. She cited the list of duties requested of her by her “boss” – AN to be carried out in D11 as a domestic cleaner. Re-bagging ripped refuse bags in the dumpster was not one of them.
She explained that AN’s sister (S), who also was a Supervisor, had asked her to carry out the cleaning of the carpets in D11 and she had received in-house training by D11 to carry out the duty.
On the 31st October 2012 M asked her to clean around the dumpsters and re-bag the ripped refuse bags. R asked M to clarify her request before speaking to the claimant about M’s request. Both R and the claimant approached M to clarify the situation. The claimant said she would not carry out the task. R told the Tribunal that the conversation was not heated. The witness remained working in the D11 premises for some time after the claimant but had then left due to what she felt was ill treatment by the D11 management.
On cross-examination she said she could not recall M asking her only to cover the ripped refuse bags in the dumpster with clean plastic bags. When put to her, she said that she had not witnessed the claimant shouting or verbally abusing M on the day in question. She could not recall if she had assisted M in carrying out the task requested later that day.
The Manager (M) of the D11 premises gave evidence. She managed the day-to-day running of the D11 premises. The respondent company was engaged, by contract, in the cleaning of the premises with two employees present to clean seven days a week. The claimant mainly worked on the first floor of the premises working two days a week. The claimant was a very good worker and there were no problems with her work.
M explained the continuous problems with the four large dumpsters in the yard. The lids often broke which meant the rubbish bags enclosed could be ripped apart by birds or vermin. The area around the bin was sometimes dirty and needed to be cleaned. M often asked the cleaners to clean around the area and she would often assist them. M told the Tribunal that she would not ask anyone to perform a task she would not undertake herself.
On the day in question one of the bins had a broken lid which had been reported to the company and a replacement was pending. On her arrival to work that morning the area around the dumpsters was dirty with ripped bags in the open dumpster. She approached R and asked her to clean around the area and cover the ripped bags with clean plastic bags to prevent any vermin from ripping them further. The damaged dumpster was to be emptied later that day by the refuse company. R left and later returned accompanied with the claimant. The three stood in a public area. The claimant was very loud and verbally abusive towards her. She pointed her finger at her saying she was “treated like a slave”. M told the Tribunal the claimant was very close to her, “stepping into her personal space”. She asked the claimant and R to move the conversation into the office. They would not. M told the claimant if she had any issues she should discuss it with AN. The claimant and R left. M was left shaken and shocked by the ordeal. She contacted both her Manager (MC) and the claimant’s Manager (AN) to inform them of the incident. Sometime later she met AN and S to discuss the incident. She felt they should discuss the incident with the claimant as this type of incident could not occur again. She had a duty of care to the residents of D11.
On cross-examination she said she had not demanded an apology from the claimant before she returned to work in the D11 premises, she only wanted to discuss the matter with her and ensure nothing like this would happen again. The claimant had issues in the past and had no problems discussing those matters with her. AN informed her the claimant would not engage in any discussions. She told the Tribunal that later that day, 31st October 2012, herself and R carried out the cleaning task.
The Care Service Manager (MC) of the D11 and another residential premises gave evidence. She explained that she had no direct dealings with the claimant but was aware there were no previous issues with her. On the 31st October 2012 M had contacted her in a distressed state informing her of the incident with the claimant and R. She agreed to meet AN with M to discuss the matter and then set up a meeting with the claimant.
On cross-examination she stated that no apology was required from the claimant in order for her to return to work in the D11 premises. AN had informed her the claimant had refused to come in.
The Operations Manager (LM) gave evidence. He had accompanied AN to the meeting in July 2012 with the claimant and her husband. The meeting did not take long and was very heated.
The owner of respondent (AN) gave evidence. He told the Tribunal that he had no previous issues with the claimant until the D11 incident. The claimant had a contract of employment and a copy of the company handbook.
AN first became aware of the incident in D11 when M contacted him and told him what had occurred and the claimant was no longer welcome on the premises. He was shocked at the claimant’s clearly unacceptable behaviour. If the claimant had issues with any duties required of her she could speak to him about it and had done so on a previous occasion regarding bins on the D11 premises. They had discussed the matter and he had sorted it with management so the claimant did not have to do it again. He made arrangements to meet the management of D11 – M and MC. It was agreed if the claimant sat down to discuss the matter, took responsibility for it and assured them it would not happen again they would review the situation.
He met the claimant to discuss the matter. The claimant was annoyed to be asked to carry such duties but was remorseful of her behaviour and said she would sort it out. AN told the claimant that the issue with the management of D11 was not that she refused to carry out the task asked of her it was the manner in which she refused to do so. However, the claimant’s attitude changed when AN met her again. She said she should be the one to get an apology. She had sought advice and would take legal action. AN told her that if she took any legal action it would be against him and not D11. AN told the Tribunal that it was “stalemate”.
The claimant continued to work in the garage and residential home of the respondents. AN told the Tribunal that he was aware, at the time, that the claimant and her family were experiencing difficulties and so he decided to continue to pay for the shifts she no longer carried out in D11. AN continued to pay her for a period of 9 weeks but due to financial constraints he had to cease it.
In February 2013 he received a call from the owner of the garage (BM) the claimant worked in. BM wanted the crew that had replaced the claimant on the occasion she could not attend work to continue with the contract as they carried out a better job. AN defended the claimant’s work and asked BM to hold off his decision until he, AN, had returned from holidays. On his return from leave he attended the garage and observed how dirty it was. He texted the claimant the following day and asked her to “hold off” from going to work in the garage. He then rang her and told her BM wanted another crew to work his contract. AN said the claimant did not accept this, “threw the head” and verbally abused him. She asked was she sacked, he replied no. Following this call he tried, but to not avail, to contact the claimant. He heard nothing from her until he received a letter from her solicitor in March 2013. Correspondence then crossed between both legal advisers.
On the 2nd May 2013 AN received a call from the claimant. He felt it would helpful for them to meet and discuss the situation. However, due to personal difficulties of which the claimant was aware they did not meet until July. The meeting was very hostile. The claimant verbally abused AN from the start. She spoke of the “home” – D11 being gone. AN told her they were there to discuss the garage. The meeting ended with no resolution.
On cross-examination he said a list of duties for D11 were pinned up in the cubby hold where the cleaning tools were located. When asked he said that he had had no prior issues with claimant. The issue at hand was the manner in which she had refused to do the task in D11 and her attitude.
This matter came before the Tribunal by way of a claim for constructive dismissal. The burden, which is a significant one, is on the claimant to satisfy the Tribunal that it was reasonable for her to terminate her own employment due to a significant breach by the respondent of the claimant’s contract of employment or because of the nature and extent of the respondent’s conduct and the circumstances in which the claimant was expected to work gave her no alternative but to leave.
Having considered the totality of the sworn evidence heard and the submissions submitted by both parties, the Tribunal concludes that the claimant has failed to meet the burden of proof and to establish that she was constructively dismissed.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal