EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Bridie Hawkins UD638/2013
Against
Arvagh Area Childcare Limited T/A Busy Bees
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr. N. Ormond
Mr N. Dowling
heard this claim at Cavan on 5th May 2015 and 14th July 2015
and 15th July 2015 and 23rd September 2015
Representation:
Claimant: Ms. Collette Egan BL instructed by:
Ms Karen Costello, Byrne Carolan Cunningham, Solicitors,
Main Street, Moate, Co Westmeath
Respondent: Ms. Patricia McGuinness BL instructed by:
Ms. Angela Dolan, Rory Hayden & Company Solicitors,
23 Farnham Street, Cavan
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced over four days of hearing. The
claimant’s claim is one of constructive dismissal and the onus therefore rests with the claimant to demonstrate that her decision to resign on 11th February 2013 was the only option that she could reasonably be expected to take, given all the circumstances.
The claimant was an experienced childcare worker of some 10 years standing when she came to manage the childcare facility in Arvagh, Co Cavan. The position carried some responsibility in so far as the claimant was expected to manage up to ten staff as well as organise the administrative and financial affairs of the enterprise.
The childcare facility is a “not for profit” enterprise and is funded from central government albeit some parents would have been expected to part fund their children’s care, where financial means made it possible.
The Tribunal finds that the claimant’s role was a significant one, not necessarily reflected in salary size and that the claimant may not have realised the full import in taking up the position.
In particular, the Tribunal notes that the claimant was answerable to an ever changing Board of Directors who came on and off the board at the drop of a hat and whose experience (outside of having children in the facility) was negligible if not non-existent.
The Tribunal notes that the claimant’s first couple of years in the position were largely without incident and between September 2009 and August 2011 the workplace operated under the claimant’s management in a satisfactory way. Clearly some tensions developed in the time such as the bizarre incident of the not so “malicious” e-mail and the heavy handed Garda presence in the workplace. Also, an open day in June 2011 gave rise to bad feeling between the directors and staff, when the directors found themselves cleaning up after a difficult day while the “paid” staff went home without a care in the world.
The claimant had no allies on the Board of Directors save in so far as a SOH who joined the board in August 2012, which date was well after the rift between the claimant (heading up the staff) and the board, had developed. In particular a difficulty arose between the two L sisters (directors) and the claimant, resulting in a complaint about one of the L sisters being over zealous by her presence in the workplace. A time consuming and ultimately pointless investigation was subsequently instigated, which is a good example of the Board of Directors (and in this instance LH) lacking the skills to manage the situation and instead seeking third party intervention.
The Tribunal fully recognises the extremely difficult position the claimant was put in again and again because she had no obvious superior to whom she could turn and of whom she could expect an executive management decision. The issues of HR and disciplinary and grievance never found formal space in a structureless system. In support of this finding, the Tribunal must look at the handling (non handling) of the various “formal” complaints brought by parents against the claimant directly. It is clear that the Board of Directors felt no obligation to automatically stand behind their manager as might be expected, but to then go and do nothing about fully investigating these complaints again demonstrates the clear lack of understanding on the part of each and every director as to what could reasonably be expected of them as directors.
On the other hand, the Tribunal must also recognise that the claimants own conduct could be perceived as being abrasive and uncooperative. There was a justification for everything without any real reflection in where the problems lay and in this regard the Tribunal points to the severe way in which the trainee LS was treated.
By August 2012 a former and pioneering director PH came back on to the Board of Directors in circumstances where the rift between the claimant and the board was reaching a crises. The Tribunal does not doubt that PH’s good intentions in this regard. The two L sisters had stepped aside and in an attempt to offer some comfort to the claimant PH went about trying to conduct investigations into the outstanding complaints which led to a number of letters being produced, essentially closing off these matters as being dead in the water.
The Tribunal accepts that with the two sisters resignations the claimant did say that she would be happier in the workplace although the claimant found the manner in which the investigations were closed down were unsatisfactory. The Tribunal recognises that there is a conflict of interests in operation here. On one hand PH seeks to wipe the slate clean and then on the other hand the claimant seeks some vindication.
The next thing of significance is the resignation of C, an employee of some 9 years standing and PH forms the impression that her resignation is due in part to her inability to get on with the claimant. The Tribunal has been told that the lady C and the claimant had had a run-in some years before when the claimant had in effect, accused C of falsifying time sheets. The allegation was not proven though C was reprimanded for her role in the affair. It is common case that C and the claimant never really recovered from this falling out and they tended to communicate through third parties, if at all.
A heated meeting was held on the 2nd November 2012 at which PH put to the claimant that her behaviour had forced the resignation. The meeting was not a particularly guarded one and the Tribunal accepts that PH told the claimant that if she could not cope she should leave. The claimant did not return to the workplace and in fact tendered her resignation in February 2013, some three months later.
On balance, the Tribunal finds that the claimant was constructively dismissed in circumstances where she had no support structures in place before she tendered her resignation. The Tribunal does not accept that PH acted mala fides and was at all times acting in the interests of protecting the under funded, not for profit, enterprise. It is clear that proper and comprehensive outside help should have been sought long before it was and the practice of allowing ill qualified and sometimes petty persons become directors was one which would ultimately bring about the situation which arose.
In qualifying compensation the Tribunal must take into account the claimants failure to partake in a grievance meeting with a purported third party as being a failure to exhaust the reasonable proposals put forward by the employer to mediate and reconcile differences.
The Tribunal therefore awards the claimant €12,500 under the Unfair Dismissal Acts, 1997 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)