EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
UD1551/11
EMPLOYEE - claimant MN1619/11
WT618/11
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: Mr M. Gilvarry
Members: Mr. D. Morrison
MR. T. Gill
heard this claim at Sligo on 4th February 2014.
Representation:
Claimant: Ms Michele O’Boyle, O’Boyle Solicitors, Courtyard, The Mall, Sligo
Respondent: Unrepresented but watching brief held by Mr. William Henry on behalf of one of the Directors, SOD.
The determination of the Tribunal was as follows:-
Claimant’s Case:
The claimant was employed as a manager of a shopping centre located in the north west of the country. Prior to that she managed the shopping centre’s car park. She commenced employment in October 2006. The company has two directors, SOD and AM.
The claimant’s role included the collection of rents from shop units, liaising with the tenants, health and safety, security and cleaning. She was not furnished with a contract of employment.
She attended management meetings on a regular basis. No concerns had been raised about her performance in the company.
In her absence on holidays in June 2010 an issue arose with car parking. Staff were asked to place notices on small cars parked in spaces. AM only wanted SUVs parked in these spaces. Staff were mocked and abused by customers. Following AM’s returned from annual leave the claimant spoke to him in relation to the car park issue. She wanted to defend the staff. AM accused her of resisting change, he was angry and shouted at the claimant. He subsequently withdrew the request. The claimant spoke to SOD about the problem.
At a management meeting attended by SOD, AM, LM (wife of AM), LM, daughter in law and tenant of the Shopping Centre and Services Charges Manager, and others, the claimant was presented with a list of duties by LM. It was suggested at the meeting that some of the claimant’s duties be assigned to others. It was clear to the claimant that AM wanted to strip her of her duties. On another occasion an issue arose concerning the patrolling of the shopping centre. It was clear to the claimant that AM wanted things done his way or no way.
To celebrate the 5th anniversary of the Shopping Centre AM a birthday cake was ordered to mark the occasion. The cake was to be delivered at 13.30 pm. AM complained that a birthday cake should have been delivered earlier in the morning that day. The claimant felt that she could not do anything right. She felt very unwell and had heart palpitations, headaches and was withdrawn from family and friends.
She commenced a period of sick leave on 9th August 2010.
At Halloween 2010 the claimant organised a promotion which was very successful and she received many compliments. AM told her that 2 tenants located on level 2 of the shopping centre complained that the promotion did not take place on their level. Again the claimant felt undermined.
RTE’s Off the Rails Show took place in the Shopping Centre during March 2011. During the course of preparations the claimant noticed a prominent hairdresser, and proprietor of a hairdressing salon located outside the shopping centre present in the centre. The claimant identified a conflict of interest with a tenant, LM who operated a hairdressing salon in the shopping centre. She quickly rectified this with RTE and the schedule was restricted to make provision for LM participating in the event. After the show LM accused of her bad management and subjected her to a torrent of abuse. The claimant was extremely traumatised and shaken. She was asked to convene a meeting towards the end of March 2011. The claimant was criticised at that meeting and again subjected to abusive and aggressive behaviour. SOD defended the claimant at the meeting and recognised the success of the event.
After that meeting the claimant felt she was always looking over her shoulder and could not do anything right. SOD was very sympathetic towards the claimant. It was clear to the claimant both partners in the business, AM and SOD were not getting on well together.
The claimant commenced a period of sick leave towards the end of March 2011 and resigned from her position on 28th June 2011. At the end of August 2011 she secured alternative full time employment.
Respondent’s Case:
No evidence adduced as the respondent was not present at the hearing.
Determination:
The Tribunal is satisfied that the respondent was duly notified of the hearing. The respondent did not attend the hearing.
Based on the claimant’s uncontested evidence the Tribunal is satisfied that the claimant had no alternative but to resign from her position due to the conduct of the respondent. The Tribunal awards the claimant €9,461.33 under the Unfair Dismissals Acts, 1977 to 2007. As this is a case of constructive dismissal the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 does not arise.
As the claimant received her holiday entitlements the claim under the Organisation of Working Time Act, 1997 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)