EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Kate O'Connell -claimant UD1271/2012
RP931/2012
MN763/2012
Against
Rosencrantz Limited - respondent
Under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
REDUNDANCY PAYMENTS ACTS, 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Ms M. Sweeney
Mr J. Flavin
heard this claim at Cork on 30th January 2014
Representation:
_______________
Claimant: Mr John O'Keeffe, John O'Keeffe & Co, Solicitors, 20 The Orchards, Ballinacubby, Kinsale, Co Cork
Respondent: Mr David Gaffney, Sweeney, Solicitors, Marlboro House, Marlboro Street, Cork
Dismissal is in dispute in this case.
Claimant’s Case
The claimant commenced employment in June 2009 with a previous owner of the business. The owner leased the premises to Company A in September 2010 and the claimant’s employment transferred to company A. The claimant received a letter to this effect at the time. CompanyA is part of a wider hospitality business group that also encompasses the respondent. The claimant’s employment then transferred from company A to the respondent without her knowledge. The respondent and company A are part of the hospitality group; they shared management and HR functions across a number of licenced premises and hotels in the area.
The claimant worked under a number of different managers over the course of her employment. The claimant’s position was that her manager (AB) for the period starting in early 2011 until approximately October 2011, made her work life difficult: he called her names and sent her texts including a number of lewd texts. She asked him to stop but he persisted. She told him she would call him a particular name if he continued this behaviour and she did. The General Manger (GM) of the group witnessed a number of these incidents as did staff and members of the public. In August 2011 when AB knocked against her arm causing him to spill drink she threw a drink over him. As GM had witnessed incidents and had not intervened, telling her there was nothing he could do, she did not feel she could make an official complaint. She felt she might not get work if she made a complaint. AB was responsible for rostering and allocating work. Two staff members corroborated the claimant’s evidence as to some of these incidents. One witness could see that the claimant was unhappy about AB’s behaviour towards her and the second witness gave evidence that a number of the texts went beyond what was acceptable.
The claimant’s hours of work had decreased significantly and by the end of her employment she was only working four hours per week. Approximately two weeks prior to a meeting on 16th February 2012 the manager that replaced AB informed the claimant that the reason she was getting so few hours was because he had been informed that she was the least experienced; she did not accept this. In January 2012, a new employee had been taken on and continues to work in the various premises of the hospitality group. The claimant did the same work as the new employee although she did not frequently move between the various premises within the group. The claimant accepted that there is a seasonal aspect to the work.
On 16th February 2012 the claimant was called to a meeting with the HR manager and GM. She was informed that there were complaints about her work so there were no more hours for her. She was told that if hours came up she would be contacted but the claimant’s name was taken off the bar roster. The claimant did not work for the respondent again. The respondent’s premises shut down in April 2012. On 4th May 2012 the claimant took up employment when the original bar owner re-opened the business.
In cross-examination the claimant accepted that the word ‘termination’ was not mentioned at the meeting on 16th February 2012 but she took it that her job was gone and put the matter in the hands of her solicitor.
Respondent’s Case
A Director (the director) of the hospitality group told the Tribunal that he was not involved in the day-to-day running of the business.
In October 2011 GM and the HR manager met with the claimant as complaints had been received about the standard of cleanliness in two of the bars.
The respondent’s business was not doing well. In early 2010 the claimant’s hours were confined to one shift per week. GM and the HR manager met with the claimant on 16th February 2012 to inform her that due to reduced opening hours in the bar and other business closures no hours were available for her at that time. The claimant was not as flexible as other staff members who frequently worked in the respondent’s other premises. The director was aware that the meeting of 16th February was taking place as a meeting of the directors had taken place just prior to it. Any dismissal would have to come through him and the director did not authorise the claimant’s dismissal on 16th February. The instruction had been to ‘scale back hours’ due to the downward turn in business. He understood that the claimant was on lay-off and that if any hours came up she would be contacted. She was not taken off the roster but no hours were being allocated to her for the time being. She was to be paid one day’s holidays over the coming weeks so that her income remained the same as it had been.
The director was not aware of any issues surrounding the claimant and AB. There was no formal complaint made so the respondent was not in a position to carry out an investigation.
The market continued to decline. As part of cost-cutting measures staff hours were reduced and negotiations were entered into to try and reduce the rent. These efforts proved fruitless resulting in the lease being surrendered to the bar owner as of 21st April 2012. By letter dated 23rd May 2012 the respondent’s solicitors informed the claimant’s solicitors of the closure of the bar where the claimant worked and that the claimant’s employment was terminated by reason of redundancy as of 21st April 2012.
Determination
The claimant was not dismissed at the meeting of 16th February 2012. The Tribunal accepts that there was an intention to give her hours when and if the business picked up. The claimant herself accepts that the word ‘termination’ was not used in their discussions at that meeting.
The bar where the claimant worked closed on 21 April 2012 and the claimant’s position was made redundant. The Tribunal finds that the claimant is entitled to a redundancy lump sum payment under the Redundancy Payments Acts 1967 to 2007 based on the following facts:
Date of Birth
Employment commenced 8th June 2009
Employment ended 24th April 2012
Gross weekly pay €353.75
This award is made subject to the appellant having been in insurable employment under the Social Welfare Acts during the relevant period.
The Tribunal awards the claimant the sum of €707.50, being the equivalent of two weeks’ pay in lieu of notice under the Minimum Notice and Terms of Employment Acts, 1973 to 2005. The claim under the Unfair Dismissals Acts 1977 to 2007 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)