EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1660/2013
WT264/2013
CLAIM(S) OF:
Viorica Andrei
against
Broadford Cleaning And Maintenance Services Limited T/A Direct Cleaning
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Hayes BL
Members: Mr. A. O’Mara
Ms. M. Mulcahy
heard this case in Dublin on 10 April 2015
Representation:
_____________
Claimant(s):
Mr. Marius Marosan, 95 Viking Harbour, Usher’s Island, Dublin 8
Respondent(s):
Mr. Gareth Kyne for Mr John Barry, Management Support Services, The Courtyard, Hill Street, Dublin 1
The determination of the Tribunal was as follows:-
The claimant had commenced employment with the respondent in 2007. Her employment ended in late 2013. The fact of dismissal was in dispute.
The respondent provided cleaning services to a particular client in whose offices the claimant worked. She normally worked a 12.5 hour week performing her duties each day in the early evening after office hours. She had responsibility for a particular floor of the client’s premises. She had not been disciplined during the six years of her employment and nor was the performance of her duties subject to a complaint.
The respondent’s contract with its client was coming to an end and it had to re-tender for the work. In an effort to put the tender application in the best light, a list of areas that required extra attention was drawn up. In the last week of October 2013 nine out of eleven employees were asked to work for an extra half-hour each day so as to get the extra tasks done. The claimant was one of those nine employees. There was to be no extra pay for those extra hours. The claimant refused to work the extra hours if she was not to be paid.
The claimant objected to the manner in which she was spoken to by her manager, SN, although she never raised a grievance in this regard.
The claimant told the Tribunal that she contacted her manager by text message the following day to inquire whether she had been dismissed and, if she had, when she would receive her P45. She said that she simply got the answer, Tomorrow. She said that she received no further communication. She told the Tribunal that she had saved these messages but that unfortunately could not produce because she no longer had access to that particular phone.
The Tribunal was told by JL, a witness for the respondent, that she had sent the claimant a text message in which she assured her that she had not been dismissed. It was put to the claimant in cross-examination that she had received a text message in the following terms:
“…you were not dismissed, you walked out of your place of work of your own accord following a simple discussion and this was witnessed. We want to know your intentions. Are you returning to work this evening? We will have to issue you with a written warning for leaving your place of work before your finishing time. You may also contact the office if you feel that you have a grievance.”
The claimant told the Tribunal that she does not remember receiving this text message.
The following week the claimant attended a meeting with JL. There was some dispute as to whether this meeting had been arranged or whether the claimant had just happened to be in the office. It is not necessary to resolve this issue. It was made clear at the meeting that she had not been dismissed and that her job was still available. JL told the Tribunal that the claimant did not want to go back because of the way that SN had shouted at her and that she just wanted her P45. JL told her not to be rash and to go away and think about it. JL said that she would talk to SN. About two weeks later they spoke by telephone and the claimant still just wanted her P45.
The Tribunal is satisfied that the claimant resigned her employment. To sustain a claim for constructive dismissal the claimant must satisfy the Tribunal that her employer had acted so unreasonably or so fundamentally in breach of contract that she was entitled to resign her employment. This is not a burden that is lightly discharged. It is clear that the claimant was aggrieved at being asked to work extra hours without being paid, notwithstanding the circumstances of the request. However the Tribunal is not satisfied that she was required to walk off the job or that she was entitled not to come back. Nor is the Tribunal satisfied that the actions of the respondent, while unreasonable to an extent, were so unreasonable to such an extent that the claimant had little option but to resign. The Tribunal is satisfied that the claimant’s job remained open and that she was counselled not to act rashly and to take some time to think about her actions. On the other hand, there was no evidence that the claimant sought to realistically engage with her employer in relation to her concerns about how she felt treated by her manager. The Tribunal is not satisfied that the claimant has discharged the burden necessary to establish a claim for constructive dismissal. In the circumstances her claim under the Unfair Dismissals Acts, 1977 to 2007 must fail.
The claimant also had a claim under the provisions of the Organisation of Working Time Act, 1997 in relation to public holiday pay. The respondent produced records to the Tribunal which appeared to show that there had been no loss in this regard. The Tribunal is not satisfied that the claimant has discharged the burden necessary to establish her entitlement and this claim must therefore fail.
Subsequent to the hearing the claimant submitted screenshots of a number of text messages between her and JL and her and SN. These should have been produced during the hearing where the respondent would have had an opportunity to cross-examine in relation to them and to make submissions about them. In the circumstances the Tribunal cannot have regard to them. It does however note that they would not have changed the finding of the Tribunal that the claimant had failed to discharge her burden of proof.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)