EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Michael Byrne, UD1105/2012
against
Buy Wise Discount Store Limited T/A Costcutters,
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr. E. Handley
Mr. N. Dowling
heard this claim in Dublin on 22 October 2013 and 16 May 2014
Representation:
_______________
Claimant(s):
Catherine Byrne, 9 New Wapping Street, North Wall Quay,
Dublin 1 did not attend on 22 October 2013
Respondent(s):
Ms. Ciara Durnin BL instructed by
Joseph McNally, Solicitor, 12a Moore Street, Dublin 1 for
Plunkett Kirwan & Co., Solicitors, 175 Howth Road,
Killester, Dublin 3
The determination of the Tribunal was as follows:-
An unfair dismissal claim was brought in respect of the employment of a store supervisor from 6 July 2009 to 12 January 2012. It was alleged that he had not been duly remunerated for all of the shifts he completed and that a couple of years had gone into his endeavours to receive the proper pay-rate before he ultimately ended his time with the respondent at the start of 2012. Some four times he wrote to the respondent but in late 2011 the national minimum wage was offered to him although ten euro per hour was paid to employees who had less service with the respondent than he did.
Also, the claimant complained of his treatment (by the holder of the post of general manager until the end of 2010) and by the respondent’s owner. The claimant was dismissed but his dismissal was reversed.
The claimant’s weekly working hours were cut as low as twenty. He raised this with the general manager whereupon he was informed that he was not required. However, given his reduced working hours, he found it unbearably frustrating that he would nevertheless be required to carry out supervisory duties. The claimant thought that the general manager treated staff worse than the claimant would find acceptable when he (the claimant) was there.
Also, the claimant thought that the fact that he was homosexual was an issue with the general manager and that this was openly known. He felt humiliated and distressed after he was informed that employees did not wish to serve with him.
The respondent’s position was that the claimant had ended his employment of his own volition such that he could not be considered to have been constructively dismissed.
Determination:
The Tribunal heard from the claimant and from witnesses for the respondent.
The Tribunal was not satisfied that, at the time that the claimant decided to leave the respondent, that the respondent’s management was vindictive towards him or conducting itself improperly with him to the extent that it was reasonable for him to leave or that he was entitled to leave due to the conduct of the respondent. The Tribunal did not feel that the claimant had been left with no option but to leave the respondent. The claimant did have issues with his remuneration but it appeared that the respondent paid him what he wanted even if there was not easy clarity as to what was due to him. The Tribunal was unanimous in its view that the claimant had not discharged the onus that was on him to show that he had been constructively dismissed.
Having carefully considered all of the issues in this case, the Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)