EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Employee - claimant UD1711/2011 MN1767/2011
Against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms E. Daly B.L.
Members: Mr D. Morrison
Ms R. Kerrigan
heard this claim at Letterkenny on 24th April 2013 and 12th June 2013
Representation:
_______________
Claimant: Hartnett Hayes Solicitors, Gweedore Road, Dungloe, Co Donegal
Respondent: O'Gorman Cunningham & Co, Solicitors, 16 Upper Main Street,
Letterkenny, Co Donegal
The determination of the Tribunal was as follows:-
This was a case of constructive dismissal. The claimant gave evidence of being Polish and beginning in employment in 2005 with the respondent as a waitress. Her job was to wait tables, take orders, and clean and polish the tables. Initially there were 5 waitresses with up to 9 or 10 at weekends. There was also 4 full-time barmen, a cleaning lady, 2 full time receptionists and 3 housekeepers. At the time of her leaving she was one of two full time employees.
The claimant told the Tribunal that she liked her job but by the winter of 2009 there was a downturn in business. Staff who left the respondent were never replaced. If any events took place staff were bought in from another location. By the summer of 2010 the claimant was covering full days on split shifts. She was doing the bar work, stocking shelves, cleaning, hovering, preparing the bar and the lounge early reception duties and also doing the kitchen porter duties. The claimant felt she was doing the job of at least 4 people. Mr B would arrive in the hotel in the late afternoon have breakfast and stay until 3pm, he would return in the evenings, his brother would sometimes do the bar and chat with people.
In January 2011 a group of people were staying in the hotel for a period of six weeks. The claimant was the only person who worked full time, apart from the chef. Around that time Mr B, the owner started sending her to do the bedrooms, it was another duty and she was already overloaded. She complained to Mr B, said it wasn’t physically possible to do it and he told her there was lots of locals who would like her job and she should be glad of it. At the end of February there was a further incident. The claimant was serving food and when she had a spare minute she went to do the dishes. The sink was blocked and the claimant had to pull the u-bend to free it, dirt splashed all over her. Mr B arrived and shouted at her to go to the bar as there were people to be served. She washed her hands but her shirt was dirty, she felt humiliated. She again told Mr B how impossible it was to do all the jobs, again he had an outburst of anger and told her she was lucky to have a job as she wasn’t even Irish.
The claimant felt that there was no way of getting through to him. She was physically and mentally exhausted. He was the owner and there was no one else to go to. She never saw a grievance procedure. In May of 2011 the claimant was fully occupied setting up the function room for 100 people while serving food, Mr B came into the function room and told her there were people to be served, again she told him it was impossible to do 3 jobs at the one time, he told her to multitask.
The final straw was when she placed an order in the kitchen, the chef wasn’t there and she told the kitchen porter to let him know the order was in. She went back to the bar, served drinks and was working away when Mr B appeared and asked about the order. She told him she placed it in the kitchen but he said she should have made sure the chef was there. She replied that she was busy and couldn’t be in two places at the one time, he told her not to talk back to him, should be glad she had a job, multi-task etc. He then called her into the office and said he could give her work to someone else, she was free to go if she wasn’t happy. The claimant was in tears, there was nothing more she could do. She was sent home so locals wouldn’t see her crying.
She rang and gave her notice over the phone, saying that the conditions were unbearable and the work overload impossible. She still attended for work and took a letter of resignation with her. She was willing to work notice rather than see them short staffed as there was no one else. It was a busy day with a funeral and she tried to approach Mr B but he said “later”. She was called to a meeting the next day and told that F would take notes. The claimant didn’t know where things were going but was given a letter of warning and told it would be kept on her file. The letter claimed that she had previous warnings. She told Mr B that she wasn’t accepting it.
Under cross examination the claimant agreed that it was a family run business, ran by Mr B, his brother and mother. The mother was advanced in years but cooked breakfast and helped at lunch, the brother entertained the guests and sometimes helped at lunch. Mr B came in during the day and again in the evening but she was often alone in the place for hours. Wage slips were correct in matching hours to rate of pay but never included the sometime up to six extra hours she was working.
The claimant had often volunteered to carry out additional duties, she tried to be reasonable but stated that “there is a limit to everything”. Her letter of resignation was polite, and she expressed appreciation for her job “it was the way she was brought up to do so” but felt it was clear that her resignation was because of the work circumstances. Asked if it was her attitude that had changed and that she had become argumentative and distant the claimant said that her attitude never changed, she wanted some of the extra duties taken off her, it was Mr B that was aggressive and told her to multitask.
Respondent’s case:
Mr B told the Tribunal that the business was a family business owned by his mother. His brother was a waiter and worked in the bar. The family are not on the rota but everyone multitasks. He would usually come in around 11am and stay until 4pm, he would return at 7pm and stay until close and is very hands on. Mr B does the rotas each Thursday and would be very aware of what staffing level is required for the following week.
Mr B felt that the claimant’s hours were nowhere near excessive. He worked alongside her as did his brother. The claimant would ask if there was anything she could do, she was never pushed into things or told she had to do it. He thought that the claimant might have been asked to do housekeeping duties once but couldn’t remember when. She was never asked to clean toilets, just check them. She asked if she would answer the phone at reception not the other way around.
On the day of the final incident a customer who had ordered his lunch had been waiting for 20 minutes. Mr B instructed the claimant, who was mopping up, to check with the kitchen. She became aggressive saying what do you want me to do, she came back and said “he’s not there”. She then went ballistic saying he doesn’t like me and I don’t like him. Mr B felt that she had gone too far. He did a letter of warning, she was upset he asked if she wanted to go home and compose herself. He felt he had done all he could and was left to do the lunches himself.
The claimant rang F the next day and verbally gave her notice, she also requested a meeting with him. They met on the Sunday and he accepted her two week’s notice, that was it, it was very amicable. The claimant very rarely worked more than 40hours per week and if she did she was paid for it.
Under cross examination Mr B confirmed that the respondent was a 37 bedroom hotel with 2 restaurants and a bar with a total capacity of over 200. Asked if his brother was a person who might sit and talk to customers he said that he would be very active and hands on. Mr B’s sister- in- law took up the claimants position but has since left.
Mr B said that the claimant was given her job description in 2005 but not any other documentation.
There was a grievance procedure booklet at reception that was prepared by an employment agent.
Asked who you would go to with a grievance Mr B said “himself”, asked who if the grievance was with him he said that “it didn’t specify”. He denied that the claimant ever came to him and said that she wasn’t happy or over worked. Everything went downhill the last 6 months of her employment, she wasn’t happy and her had to approach her about her attitude. He had no record of her verbal warnings.
Asked if he avoided her on the day she wanted to meet with him and instead drafted her written warning he said no, he was working that day, it was busy and thought she might want to apologise. When the claimant called to his office he was with someone and said “we’ll do it tomorrow”. The claimant was called to his office at the end of her shift and would not have been aware of it being disciplinary or a note taker being present.
Determination:
This matter came before the Tribunal by way of a claim of constructive dismissal. The question for the Tribunal was whether the claimant left her employment in circumstances in which, because of the conduct of her employer, it was reasonable for the claimant to terminate her contract of employment. The Tribunal unanimously agree that the claimant has succeeded in meeting the onus which is on her to establish that she was constructively dismissed. Accordingly the Tribunal award €15,000.00 under the Unfair Dismissals Acts 1977 to 2007.
There was no evidence adduced in relation to the claim under theMinimum Notice and Terms of Employment Act 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)