EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Monika (Molly) Brien UD669/2015
Noonan Services Group Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Ms S. Kelly
heard this claim at Wexford on 15th April 2016
The claimant in person
Mr John Barry, Management Support Services, The Courtyard, Hill Street, Dublin 1
The claimant commenced work as a general operative with the respondent in June 2005. She worked eleven hours, over three days, per week and earned €9.50 per hour. She was in receipt of a social welfare payment in respect of the other days. She was initially employed doing cleaning duties at a commercial premises in Enniscorthy but was made redundant when the contract the respondent had regarding these premises finished. The claimant contacted Allied Irish Banks Plc in Enniscorthy enquiring if they required a cleaner. The bank did not respond directly to the claimant but when the respondent secured the contract with Allied Irish Banks they re-engaged the claimant.
On the 13th February 2015 the claimant resigned because of the additional workload that was expected of her and the failure of the respondent to give her extra hours in order to cope with this workload. Accordingly, the claimant says her resignation was a constructive dismissal and which dismissal is an unfair dismissal.
The respondent disputes the claim and says no additional workload was imposed on the claimant by the respondent and that in any event the respondent was negotiating with the bank for extra hours for the claimant.
The Claimant’s Case
The claimant gave evidence of her redundancy about three years prior. The claimant felt she was instrumental in securing the contract with AIB for the respondent. She said she started working in the bank carrying out the usual cleaning duties. She worked eleven hours, one hour of which was off the premises washing tea towels. These hours initially were worked over five days and the claimant asked the bank if she could do the work over three days, being Monday, Wednesday and Friday as this would enable her to claim a social welfare payment for the other days. The bank agreed and the respondent appeared to have no issue with it.
The claimant told the Tribunal that in September 2014 RM, the porter for the bank, was made redundant. The claimant said she now had to carry out duties that RM had done such as putting out bins, sweeping the yard, making teas and coffees/making sandwiches for bank staff and going for milk and other messages. In November 2014 she said that she complained to KK who was her line manager and asked for extra hours and he told her there will be “more hours in time” and that they were “awaiting approval from the bank”. She spoke to AC, area manager for the respondent, on 28th January 2015 regarding the matter and told her she “was under pressure”. On the 30th January 2015 she received a letter of change to terms and conditions of her employment. The change gave the claimant only one extra hour and required the hours to be worked over five days instead of three. The claimant said she was very upset by this and as a result on 6th February 2015 gave her notice by way of text message to KK. She also sent a written resignation by registered post to the respondent on the same day.
She said the bank organised a get together, had a cake and wished her well.
In cross-examination it was put to the claimant that her contract provided for a Monday to Sunday week. The claimant said nobody worked Sunday as the bank was closed. The contract was opened to the Tribunal and it did provide for a Monday to Sunday week.
It was put to the claimant that the respondent did not require her to make teas and coffees, to sweep the yard or go on messages for the bank. The claimant accepted this but said she felt obligated to do these extra duties. It was put to the claimant that AC for the respondent told the claimant this when she queried why the claimant was getting lotto tickets for bank staff. The claimant said she got the lotto tickets on her way home on her own time. It was also put to the claimant that the respondent was at the time the claimant resigned still trying to get increased hours for her from the bank and that it was the bank and not the respondent that requested the five day week.
It was put to the claimant that she wanted three days in order to allow her to claim the social welfare payment. The claimant vehemently disputed this saying that if she got 19 hours per week she would work the five days.
The Respondent’s Case
AC for the respondent gave evidence. She said she worked as a supervisor for the respondent for 11 years. She said she was put in charge of the Enniscorthy contract on 1st December 2014. She said that she visited the bank. She said that the extra work load being carried out for the bank by the claimant was taken on by the claimant and for a long time unbeknownst to the respondent and that when the respondent became aware of it the claimant was told that she was to concentrate on her duties for the respondent.
AC told the Tribunal that it was the bank that wanted the five day week. She said there was no discussion with the claimant regarding nineteen hours but that she was seeking to have the hours increased to fifteen hours and that she wrote to the claimant on 19th February 2015 regarding her resignation and asking her to reconsider and engage in the grievance process.
In cross-examination it was put to AC that she could have allowed the claimant to work three days and get cover for the other two days. AC said the bank would not have agreed to this. It was put to AC that DMcG often did cover for the claimant but AC said DMcG only did cover on two occasions.
It was put to AC that the respondent had somebody in the claimant’s job immediately after her resignation. AC said that they could not leave a client without cover. AC was asked what hours the replacement for the claimant worked and AC said fifteen hours but that only came in June 2015 and would have been available for the claimant had she stayed.
Having considered the evidence of the parties adduced at the hearing the Tribunal finds that the claimant herself took on the additional duties when the porter for the bank left. The Tribunal accepts that the claimant felt obligated to so do and did it in good faith but the respondent had no part in her so doing.
The Tribunal further finds that the claimant appears to have conflated the bank and the respondent taking on extra duties for the bank and expecting the respondent to organise extra hours for her to do these duties.
The Tribunal accepts that prior to going to the premises of AIB the claimant had worked three days which could have amended her contract by virtue of custom and practice. Nonetheless the claimant signed a new contract in July 2013 which contained the five day week provision, did work a five day week initially on the AIB contract and it was the claimant herself who had requested a change to three days with the bank rather than with the respondent. The Tribunal further accepts that it was AIB who wanted the change back to the five day week.
The Tribunal finds that when the respondent was made aware of the situation in November 2014 it took action to improve the situation and was actively working on it when the claimant resigned.
In the circumstances the Tribunal finds that the claimant has failed to discharge the high burden of proof adequately or at all in order to succeed in a claim for constructive dismissal. Accordingly, the claim under the Unfair Dismissals Acts 1977-2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal