EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
- appellant UD1223/2013
against the recommendation of the Rights Commissioner in the case of:
Valleycrest Holdings Limited
UNFAIR DISMISSALS ACTS, 1977 TO 2007
PAYMENT OF WAGES ACT, 1991
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly B.L.
Members: Mr. A. O'Mara
Mr J. Jordan
heard this appeal at Dublin on 25th November 2014 and 27th January 2015
Appellant(s) : Ms Susan Jones B.L. instructed by:
Jones Solicitors, 3 Lower Mount Street, Dublin 2
Respondent(s) : A Company Director
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of the employee appealing the decision of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 ref: r-132048-ud-13/RG, the Payment of Wages Act, 1991 ref: r-130131-pw-13/RG and the Organisation of Working Time Act, 1997 ref: r-130130-wt-13/RG.
At the commencement of the hearing the appeal under the Payment of Wages Act, 1991 was withdrawn by the appellant.
As the case was a constructive dismissal case the appellant gave evidence first.
Employment with the respondent company commenced in 2004 as a Delicatessen Assistant. She was promoted to Assistant Manager in 2007 at a different site. In October 2012 she first learned that a complaint of bulling was made against her. The appellant submitted that this came as a great surprise to her and she believed it was part of a plan to dismiss her from her employment. She sought legal advice at the time and requested the full details of the complaint and incident of bullying made against her by letter dated 31 October 2012. The working environment became increasingly difficult with the Manager instructing other employees not to communicate with her.
At a meeting on the 22 November 2012 the appellant was informed that her written response to the allegations which she prepared with the assistance of her solicitor was not appropriate. She was also sent home with pay. She had prior approval to take holidays for the following week and on her return to her home on the 4 December 2012 a letter from the respondent advised her of her demotion to Sales Assistant and a final written warning. The demotion was imposed immediately. She availed of the appeal process offered to her on the grounds that the sanction was excessive and extreme in circumstances where she had no prior disciplinary matters or warnings on her record. She was given no opportunity to question or examine the complaints against her and was not provided with the polish translated statements. Following several requests to inform her of the appeal outcome she received a letter on the 9 January 2013. The appellant was hugely effected by the process suffering from lack of sleep and weight loss. She resigned by letter dated 12 January 2013.
The Manager (CH), an employee (IW) and the respondent’s HR Consultant (DD) gave evidence.
CH explained there had been no issues with the appellant until September 2012. When an employee and colleague of the appellant (LG) approached him in a distressed state telling him the claimant was bullying her. CH requested LG to put her complaint in writing. Having discussed the matter with management CH was requested to investigate the matter and interviewed all staff members. Two other staff members (IW and Di Di) also made complaints to him regarding the appellant. All three complainants – LG, IW and Di Di, gave written statements to CH, two in Polish and one in English. When asked, CH said that he could not read Polish but his Polish wife translated these two Polish statements for him. (Her notes of these translations were not available to the Tribunal).
The appellant was called to a meeting on the 31st October 2012 with CH and the respondent’s HR Consultant - DD. She was asked did she require a witness, replied no, handed a letter to CH and left.
On the 11th November 2012 the appellant was given LG, IW and Di Di’s statements. A second meeting was held on the 22nd November 2012. CH told the Tribunal that the appellant would not engage in the meeting and again handed over a letter and left. The appellant requested an official translation of the two Polish complaints against her, the times and dates of these alleged incidents, the persons these complaints were made to and any other queries made to made through an agreed language from a qualified interpreter. CH approached the appellant and informed her she was suspended with pay and “would make a decision on it”. A decision was made to demote the appellant. And she was informed by letter dated the 4th December 2012. The appellant submitted a letter of appeal to CH and the owner of the respondent company (KB).
On cross-examination CH said he did not have a copy of notes taken at any meetings. When asked, he said LG had been working for the respondent three months when she had made the complaint against the appellant. When put to him, he said that neither he nor DD could understand or speak Polish but stated that he had no difficulty conversing with the Polish staff working for the respondent.
A former colleague (IW) gave evidence. She had made a written complaint against the appellant to CH. She explained that she and the appellant’s brother and his partner had been close friends but this friendship had since ceased.
IW felt the relationship between herself and the appellant deteriorated after she, the witness, had signed her employment contract. After this the appellant openly discussed IW’s working hours, would change her duties and would discuss other staff members in front of her. CH asked her did she have a problem with the appellant, when hearing she had, he asked for her complaint in writing.
In late September 2012 she attended a group meeting with LG, Di Di, CH and DD. LG was very upset at this meeting.
On cross-examination she had left the respondent’s employment on the 16th November 2014 but had returned on the 12th January 2015. When asked, she said she had never lodged any prior complaints against the appellant before September 2012.
The HR Consultant (DD) gave evidence. Having received a telephone call from the owner (KB) concerning problems staff were experiencing with the appellant, he arranged to meet her and CH on the 31st October 2012. The appellant did not participate in the meeting, only handing over a letter and leaving.
On the 14th November 2012 DD met the three complainants – LG, IW and Di Di who had requested to meet him as a group. They outlined their differences with the appellant. LG seemed particularly afraid and upset at the meeting. He advised the three complainants they needed to put their complaints in writing.
On the 22nd November 2012 the appellant handed in a letter and left the meeting. Having discussed the issue CH approached the appellant and informed her she was suspended with pay.
On cross-examination he said he had researched the appellant’s length of service. There had been no prior issues with the appellant. When asked, he said that he did not read Polish and had not received a translation of the two complaints in October 2012.
He stated that he had advised the appellant firstly be suspended with pay and secondly be demoted. He was not involved in the appeal process.
The Tribunal have carefully considered all of the evidence together with the documentation submitted over the two day hearing.
The appellant alleges she was constructively dismissed from her employment with the respondent
Section 1 of the Unfair Dismissal Act defines constructive dismissal as:
“ the termination by the employee of his contract of employment with this employer whether prior notice of the termination was or was not given to the employer in the circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”
The burden of proof, which is a very high one, lies on the appellant. She must show that her resignation was not voluntary. The legal test to be applied is “an and or test”. Firstly, the Tribunal must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract. If the Tribunal is not satisfied that there has been a significant breach of the contract it can examine the conduct of both the employee and employer together with all the circumstances surrounding the termination to establish whether or not the decision of the employee to termination the contract was a reasonable one.
The respondent stated that LG came to CH in a distressed state and said that she was being bullied by the claimant. CH went to KB, the owner, and spoke to him about it. KB instructed CH to investigate the matter. He did. In doing so he went to all staff members and asked them if they were experiencing difficulties with a certain member of staff. He insisted that he did not mention the appellant’s name when doing so. However, the statement of LG (the complainant) admitted into evidence would suggest otherwise. In her statement she stated “In October 2012 CH asked me and other workers from spar about relations at work with J…He was looking for people who had problems with her”. Two employees stated that they did have issues with the appellant and they produced written statements to that effect. In total three statements were produced, LG, DD and IW. Two of the statements were in polish, LG’s and IW’s. CB doesn’t speak polish. His wife is Polish and she made notes for him so that he could understand the complaints. He did not have them formally translated. DD gave evidence that he did get one of the statements translated but he didn’t rely on the statements at all. He relied on what the girls told him. Based on his evidence the verbal accounts of the events and the written accounts are inconsistent with one another. DD did not test the veracity of the complaints by comparing the written statements with the verbal ones. Based on the written complaints, DD’s written statement does not disclose anything that could amount to Bullying and Harassment. LG’s statement did disclose some elements of dissatisfaction however it would seem from her statement admitted into evidence that she didn’t volunteer the complaint, CH asked for it. DD’s statement does not disclose behaviour that could in law amount to bullying and harassment.
CH’s role and DD’s role overlapped. Both gave evidence that they were the investigating officers. It would seem from the evidence that neither knew exactly what their role was or what the others role was. In any event, CH invited the appellant to an investigation meeting by letter, undated and unsigned. That letter does not disclose that DD would be the investigating officer, does not disclose the allegations being made against the appellant and does not disclose who had made the allegations. The respondent had in its possession at the time the invitation was sent all of the statements and therefore all of the allegations. It should have disclosed that information to the appellant to allow her time to prepare a reply. The respondent also states in the invitation “this is a serious matter and may result in disciplinary action”. The respondent was premature in coming to the conclusion that this was a serious matter when it only had one side of the story. On the 31st October, 2012 the appellant did attend the meeting but only for the purpose of handing the investigating officer a letter. In that letter she requested details of the allegation and the complainants. “Please let me have your formal written complaint on the companies headed notepaper disclosing the names of the accusers and the time and place of the incidents you say were complained of.” She also requested “copy of any written complaint and if complaint was not in writing the name of the person to whom it was made and their written notes made at the time.” DD gave evidence that he did meet with the complainants and he did have notes of what they said however those notes where never made available to the appellant or to the Tribunal. It was important she be given this information particularly in light of the fact that DD didn’t rely on the written statements.
A second meeting was arranged for 22nd November 2012. The appellant was still not in receipt of all of the documentation she requested. Again she refused to engage in the process until she was in possession of all the facts. DD then took it upon himself to recommend the appellant be demoted. He was not the disciplinary officer, a disciplinary meeting had not been arranged, the claimant had not been informed that her none involvement could lead to investigation progressing to the next stage of the disciplinary process. It was totally inappropriate for the investigation officer to make such a recommendation. It was completely outside of his function in the process. It was in breach of the companies own disciplinary process. His role was to establish whether or not there was a case to answer and if so, to send the matter forward for disciplinary hearing. It was not to make recommendations.
The respondent acted on DD’s recommendation and demoted the appellant. As a result her status within the organisation changed, her job title changed, her duties changed. That is a breach of her contract.
The Tribunal upset the Rights Commissioners recommendation and find that the appellant’s claim under the Unfair Dismissal Acts succeeds.
The appellant did not produce any documentary evidence to support her claim that she started to look for work immediately and looked everywhere. Fourteen months after her employment ceased she secured employment albeit at a lesser rate.
The Tribunal awards the appellant the sum of €6,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
The appellant stated that she was entitled to holiday pay for the period of one year. The respondent had a policy of including a percentage of the annual holiday pay in every months wages. The respondent stated that she was paid all of her holiday money albeit in stage payments over twelve months. Section 19 of the Organisation of Working Time Act is silent of the issue of rollover payment. Article 7 of the Directive together with established European case law would suggest that rollover holiday pay is not permitted. The purpose of holiday pay is that the employee be paid a lump sum (wages) for the period they are on holidays. Any other type of staggered payment system may act as to prevent an employee actually being able to afford to take annual leave. Our domestic law is silent of the specific issue presumably because our legislation also deems to be unlawful.
Therefore the appellant is entitled to a lump sum for her holiday pay in the sum of €1,840.00, this being four weeks gross wages, under the Organisation of Working Time Act, 1997.
Sealed with the Seal of the
Employment Appeals Tribunal