EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE, UD734/2012
- claimant MN545/2012
WT245/2012
Against
EMPLOYER - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. McAveety
Members: Mr. T. O'Sullivan
Mr O. Nulty
heard this claim at Longford on 23 July 2013
Representation:
Claimant(s) :
Respondent(s) :
The decision of the Tribunal was as follows:-
Summary of Evidence
The claimant commenced employment with the respondent company on 1 March 2007. The respondent company operates a convenience store which includes a delicatessen where hot and cold foods are served. The claimant was employed in the role of shop assistant working mainly in the delicatessen area. She was at work on the 31 January 2012 on the early morning shift with a start time of 7:30am. At approximately 10:45am she was asked by another employee to report to the respondent’s office. During the course of the meeting the respondent made reference to a food item which was burnt. The discussion was witnessed by another employee who was requested to remain on as a witness to a disciplinary meeting. The respondent went on to say that she was costing him money, that deli business was down 50% and that he had grounds to sack her for always burning food items. He then advised her to apply for redundancy. She had intended explaining that the oven seal needed replacing and was the reason food items were regularly burned on one side. This had previously been told to the respondent however he never accepted that the oven was a problem. He quoted her a figure for redundancy and asked her not to discuss with any other employee. She signed the papers without any opportunity to read the content. She felt she had no choice and there was no time to seek advice. The claimant had no previous disciplinary matters at that time. She finished the following Friday receiving her P45, payslip and a cheque in an envelope that day. She believed she was a valuable employee. At the time her employment ended she was owed one day holiday pay and received no payment in lieu of minimum notice.
The claimant denied she ever applied for voluntary redundancy and denied any voluntary redundancy was ever proposed by the respondent at that time. A document dated the 31 January 2012 was opened to the Tribunal which refers to the claimant formally applying for voluntary redundancy. The claimant believes that the document does not bear her signature and has reported this to the Gardaí. She first had sight of this document at her solicitor’s office.
The respondent PH in his evidence to the Tribunal explained that at the time the claimant’s employment ended he had offered a voluntary redundancy package to a number of employees by way of letter dated January 2012 which the claimant applied for in writing and signed. The offer was made due to the downturn and economic circumstances at the time. The option of pay cuts was not considered. Prior to that offer he had some issues with the claimant which included her regular use of her mobile phone which was not permitted. The respondent denied carrying out any work on the delicatessen other than rearranging the position of the counter in the store and no new uniforms were ever referred to by him. With regard to the claimant’s pay it was denied that €50 cash payments were included in the claimant’s pay packet each week.
The respondent had no recollection of any burnt apple tart on the day he met with the claimant. He rejected that he ever threatened the claimant with sacking her. Following the claimant’s employment ending he hired agency staff to fill her position in the delicatessen.
Determination
The Tribunal have carefully considered all of the evidence presented to the Tribunal and find the evidence of the respondent unreliable. The Tribunal accepts the evidence of the claimant and find that no genuine redundancy existed.
It follows therefore that the Tribunal find that the claimant was unfairly dismissed. The Tribunal awards the claimant the sum of €17,000 under the Unfair Dismissals Acts, 1977 to 2007.
The Tribunal further awards the claimant the sum of €743.00 under the Minimum Notice and Terms of Employment Act, 1973 to 2001 and the sum of €85.20 under the Organisation of Working Time Act, 1997.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)