EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD60/2012
Against
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. D. Donovan B.L.
Members: Mr. J. Browne
Mr. J. Flavin
heard this claim at Waterford on 29th July 2013
Representation:
Claimant:
REP
Respondent:
Mr Eamonn Carroll,
Noonan Linehan Carroll Coffey, Solicitors, 54 North Main Street, Cork
Claimant’s case:
The claimant commenced employment with the respondent as a Pharmacist on 24th September 2003 and resigned on 16th November 2011. The claim by the claimant is that she was constructively dismissed by the respondent.
Sometime in 2005 the claimant bought a 10% share in the company and her salary increased to €80,000 per annum. By 2007 the value of these shares had increased significantly but there was a downturn in profits for 2008 and cuts were made. However the claimant examined the accounts for that year and believed that the majority share-holder (BG) had paid himself a salary of €82,000 that year.
The claimant borrowed money from the company and was repaying this by deduction from her pay on a monthly basis. However she discovered that these deductions were still being made even though the loan had been fully repaid. The claimant met with BG in September 2011 and told him she was owed €2,400.00. BG said he would have to think about it but the deduction was still made in September 2011 and this upset the claimant.
In October 2011 the claimant arranged a meeting in her own house with BG. At this stage BG had done nothing about the deduction and told the claimant that there were no other jobs out there and that if there were the pay for those would be €25,000 per annum less than she was being paid. It really upset the claimant that BG thought that she should only be paid €50,000 to €55,000 per year. This set off alarm bells as BG had already told another employee that they could take a 33% pay cut or redundancy. The claimant could see the same thing happening to her and began to search for alternative employment. On 9th November 2011 the claimant was offered another job which paid €72,000 per annum. She subsequently met with BG about leaving and he told her to do what she wanted. The claimant handed in her notice on 14th November 2011 and took up employment with the other company on 21st November 2011.
Respondent’s case:
The respondent’s position was that the claimant resigned of her own volition and that nothing he did could be construed as constructive dismissal.
BG sold a 10% share in the company to the claimant in 2005 and the value of that share rose in value for a number of years but in 2008/2009 the company experienced a severe decrease in profit. The claimant wanted BG to buy back the shares he had sold her and there were on-going negotiations in respect of this up to when the claimant resigned.
The loan that had been given to the claimant and the repayment of same was a matter that BG was considering in relation to it’s tax implications. This matter was under consideration when the claimant resigned.
It was agreed that BG had said that pharmacists in other companies were earning significantly less than the claimant. However BG never imposed or asked the claimant to take a pay cut.
BG referred to a letter dated 22nd November 2011, which was written by him to the claimant. In this letter BG addressed a number of issues and invited the claimant to return to her post. A copy of this letter was submitted to the Tribunal.
Determination:
Having considered the evidence adduced by both parties at the hearing the Tribunal by majority finds that the respondent did not act in a manner such as rendered it reasonable for the claimant to terminate her contract and to consider herself constructively dismissed.
The Tribunal finds that the working relationship between the claimant and the respondent was good and that any unhappiness felt by the claimant as against the respondent was as a result of a business relationship between them and which could properly be addressed otherwise than by termination by the claimant of her contract. The Tribunal accepts that whereas, any monies overpaid by the claimant in respect of a loan was also an issue between the parties, it did not cause the claimant to resign.
Rather the Tribunal finds that the claimant left her job because she had secured another job interpreting the respondent’s statement that she was being paid above the going rate for the job as meaning her salary would be reduced. Accordingly, the claim under the Unfair Dismissals Act 1977-2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)