UD1217/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                               CASE NO.

Aleksandra Glica – claimant                                                                        UD1217/2013

 Against

 The Bagel Bar Franchise Co Limited – respondent

 under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:       Mr D. MacCarthy SC

Members:       Mr L. Tobin

                       Mr C. Ryan

heard this claim at Dublin on 11th June 2014

Representation:

_______________

Claimant(s):               Mr Brendan Archbold

                                  89 Philipsburgh Avenue, Fairview, Dublin 3

Respondent(s):           Mr Don Garry

     The Bagel Bar Franchise Company Limited, 17 Saint John's Drive, Saint John's        

     Grove, Johnstown, Co Kildare

The determination of the Tribunal was as follows:-

This was a case of alleged constructive dismissal. The claimant was employed by the respondent in one of its food outlets which was based within a shopping centre in Edenderry, Co Offaly. On 4^th October 2012 the claimant and two other employees emailed a request to meet with senior management about difficulties they were having with their manager and her husband (who was not an employee). The employees and manager were all Polish nationals. They requested the meeting to be offsite, preferably in Dublin.

The claimant was unhappy with the manager’s behaviour and alleged that she was rude, belittling, verbally abusive (in Polish so customers would not understand),banged into her intentionally behind the counter or opened cupboard doors and hit her in the legs or head with the door and never apologised. She also alleged that the manager was often in a bad mood and when she fought with her husband she took it out on the employees. The manager’s husband was not an employee but worked in the shopping centre, however, the claimant gave evidence that he often came into the shop and gave out to the employees and told them what to do. The manager allegedly insisted that the employees stayed later than rostered, unpaid. The manager said that the situation in the company was very bad and they had to do this.

The Operations Manager met with the claimant on 8^th October 2012 and the other two employees individually at the unit in Edenderry. He later wrote to the claimant and confirmed that the matter was being looked into. The claimant sent an individual letter of complaint to the Operations Manager as he had requested. The claimant heard nothing further. She went on sick leave due to stress from February to May 2013. She emailed the Operations Manager on 20^th April 2013 to enquire about the complaint she had made about the manager. She confirmed that she was still ill and on medication but expressed an interest in returning to work if she could.

The claimant did not receive any response to her email and on 10^th May 2013 she wrote to the company and resigned as she could not return to the stressful environment in the shop.

The company responded in writing on 15^th May 2013 stating that the claimant had been declared fit to return to work from 17^th May 2013, that she resigned before being medically fit to return to work, that her comments about the manager were “unwarranted, without foundation and are regarded as malicious as she is an honourable and upstanding member of staff” and that the company had no record of having received complaints or the claimant activating the company’s internal grievance procedure a provided for in the handbook. The respondent company did not put forward any witness to give evidence.

Determination:

The claimant and two colleagues made a number of complaints about their manager which they put to the company’s Operations Manager. Some meetings were held but, according to her, the problems were not resolved. They also made some complaints about their manager’s husband who was not employed by the company. The claimant was out ill from February to May 2013 for what she described as work related stress. She then resigned on the grounds that she could not return to the stressful environment of the shop in the absence of any change. The respondent did not call the manager or any other evidence to contradict the claimant’s version.

The Tribunal accepts the version given by the claimant.

On behalf of the respondent it was submitted that the claimant did not invoke the grievance procedure as set out in the employee handbook. The claimant said that the first two steps in the grievance were not appropriate (Step 1; that employees should initially speak to their supervisor in an informal manner and Step 2; that the employee should inform their supervisor of their grievance and request a formal meeting) as her complaint was about the conduct of that supervisor, and the Tribunal accepts that point.

The respondent also argued that the grievance procedure envisaged an individual complaint and that raising an issue as a group rather than as individuals was not in accordance with that grievance procedure. The Tribunal does not accept this argument and is satisfied that the claimant did all that could reasonably be expected of her in the circumstances.

For these reasons the Tribunal finds that the claimant was constructively dismissed within the meaning of the Act and the dismissal was unfair.

The Tribunal considers that the sum of €5,000 (five thousand euro) would be just and equitable having regard to all the circumstances under the terms of the Act and awards her compensation in that amount.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)