UD103/2012, WT25/2012

 EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

ORGANISATION OF WORKING TIME ACT, 1997

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms B. Glynn

Members:     Mr B. O’Carroll

                     Ms H. Henry

heard these claims at Roscommon on 23 September 2013 

Representation:

Claimant: 

Respondent:

The determination of the Tribunal was as follows:

This being a claim of constructive dismissal it fell to the claimant to make his case

The claimant worked in the respondent’s jewellery shop from June 2009 on a part-time basis. She was recruited after the managing director (MD) of the respondent approached the claimant’s school to see if any of their pupils who were interested in jewellery and design might want to work part-time for the respondent. The claimant began transition year in school in September 2009. She worked Saturdays with extra days sometimes worked during school holidays.

The employment was uneventful until March 2010 when the claimant’s position was that MD became cross with her after she arranged to go to Dublin on a Saturday she was expected to work, despite MD’s daughter having worked instead of her on the previous two Saturdays. MD told the claimant she was immature over this incident and it made the claimant feel uncomfortable. The claimant had issues with having to work through her lunch break on occasion including an incident when she was having lunch in a local restaurant and MD, who came to lunch there after the claimant, shouted at her to get back to work. On one occasion the claimant did not comply with the respondent’s dress code of white blouse and black pants or skirt and the claimant was uncomfortable about the way MD raised this with her.

The respondent’s position was that MD had no recollection of the March 2010 Saturday incident, denied shouting at the claimant in a restaurant and had counselled the claimant about not complying with the dress code.

On Monday 18 July 2011 MD was away from the shop for a day and the shop was staffed by the claimant and a colleague (AC). When MD returned the following day she discovered that certain tasks, including till reconciliation, had not been carried out and that takings for the day were below expectations. This caused her to view CCTV footage of 18 July. As a result of this MD spoke to AC on 19 July and AC acknowledged that her behaviour on 18 July had been inappropriate and apologised. AC still works for the respondent.

The claimant was not due in work again until the following Saturday. MD, being aware that the claimant was to attend her graduation dance on Thursday 21 July left it until Friday 22 July 2011 to speak to the claimant about the events of 18 July. When she called the claimant, the claimant who was returning from a funeral, did not answer her call. MD then called the claimant’s mother (CM) and said that she wanted to speak to CM about the claimant’s behaviour.

CM went straight to see MD but before she arrived MD discovered that a bracelet which the claimant had put in for repair was missing from its envelope and with the cost of the repair outstanding. It is common case that the meeting between MD and CM did not go well and the claimant’s case was that MD accused the claimant of having stolen the bracelet.

CM went to collect the claimant and went back to see MD taking her sister (CA) with her. It was again the claimant’s case that MD accused the claimant of having stolen the bracelet. AC had been dealing with customers during the first meeting and at the start of the second meeting. When she became available AC explained that the bracelet was hers, the claimant had borrowed it, damaged it and therefore put it in for repair. Once it was repaired AC had reclaimed the bracelet. As a result of the meeting with MD the claimant felt that her relationship with the claimant was over and she never returned to work in the shop.

Determination:

MD told the Tribunal that the reason she delayed speaking to the claimant about the events of 18 July until 22 July 2011 was because she knew that the claimant was fragile and wanted to wait until after her graduation dance. The claimant had required counselling from May 2011 and the Tribunal is satisfied that the stress associated with the then imminent leaving certificate exams were the catalyst for this. Nevertheless it was inappropriate of MD to call CM on 22 July and arrange to see her; this was a matter between MD and the claimant who was eighteen years of age.

There is no doubt that the events of 18 July warranted MD talking to the claimant and there is equally no doubt that MD was entitled to make enquiries about the bracelet. The Tribunal is not satisfied that MD accused the claimant of theft; indeed before the end of the second meeting an innocent explanation of the bracelet’s whereabouts was forthcoming. The Tribunal is satisfied that the claimant has not shown that the conduct of MD either on 22 July 2011 or on the other occasions complained of was so unreasonable as to justify a claim of constructive dismissal. Accordingly, the claim under the under the Unfair Dismissals Acts, 1977 to 2007 must fail.

The claim under the Organisation of Working Time Act, 1997 was withdrawn.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)