UD850/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                               CASE NO.

Danuta Wieczorek                                                                                                    UD850/2013

                                                               -claimant                    

against

Pagewell Limited

                                                              -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms P. McGrath B.L.

Members:        Mr. E. Handley

                        Mr J. Maher

heard this claim at Dublin on 3rd July 2014

Representation:

Claimant: O'Hanrahan & Co., Solicitors, Lexington House, 71

                Ballybough Road, Fairview, Dublin 3

Respondent: Citation Ltd T/A Citation Professional Solutions, Citation

                      House, 1 Macclesfield Road, Wilmslow, Cheshire, Sk9 1 BZ

Determination:

The Tribunal has carefully considered the evidence adduced. The claimant claims she was constructively dismissed when she resigned her position on or about the 29^th of March 2013. The workplace was a retail unit in Balbriggan and the claimant was a general shop assistant although she had no till skills and little English comprehension or language.

In her evidence, the claimant made the case that she had had a poor relationship with her newly arrived manager and on foot of what she believed to be belittling behaviour on his part she raised a grievance issue with head office. The respondent company responded to the grievance by setting up a meeting with the claimant to allow her fully outline her grievance.

The meeting took place on 20^th December 2012 and whilst the evidence was that the meeting was fully conducted in Polish, the synopsis is in English and appears to have been signed by all the parties present on that date. The interviewers were unavailable to give evidence, though it seems likely to the Tribunal that the content of the interview was made known to the manager about whom the grievance is raised as he made a written statement on 27^th December 2012, some seven days after the meeting.   Surprisingly the grievance process appears to have stopped at this point. The respondent submits that the matter was resolved locally and no further investigation or written record was required or prepared. The claimant makes the case that she heard nothing regarding an outcome and in fact was now in a position where she was continuing to work for a manager about whom an unresolved complaint had been made.

The respondent made much of the fact that the claimant’s working week had not been reduced significantly by the manager as she had alleged and yet the evidence of one of the witnesses provided by the respondent company did confirm that the claimant and her manager were still rowing about how few hours she was getting, right up to the day of resignation. This evidence was telling because it seems from it that the claimant in the course of an angry conversation she was having with the manager with whom she had been having difficulty all along also resigned her position.

Ordinarily when cases like this present themselves before the Tribunal allows for a “cooling-off” period has not been allowed for. Resigning in the course of an argument can never be a satisfactory way of leaving a position. The manager in question instead immediately drafted a letter of resignation and asked the claimant to sign same.

The evidence of one of the respondent’s witnesses was that if the claimant was experiencing ongoing difficulties then it was open to her to bring another grievance. The Tribunal would question the logic of this from the claimant’s perspective given that some three months later she had not had any satisfactory response or solution arising from the grievance meeting already conducted.

The Tribunal has to be mindful of the burden of proof placed on the claimant in that she must establish that she had no option other than to tender her resignation.   It is clear to the Tribunal that the claimant was, despite a language barrier, well able to articulate her difficulties insofar as she brought a grievance to the attention of the head office by way of telephone conversation and letter. The Tribunal has to ask the question why the claimant did not contact the head office thereafter regarding an outcome and maybe some solutions on foot of the investigation.

The Tribunal cannot ignore the fact that there was a lacking follow up on the part of the employer and the Tribunal cannot accept that the matter had been resolved locally when there is absolutely no evidence to support that contention. In the absence of such evidence the Tribunal must accept the contention that the claimant continued to work alongside a manager she said shouted at her, bullied her and belittled her and head office management did nothing to alleviate this situation.

On balance therefore, the Tribunal must find that the management knew or ought to have known that the claimant could not reasonably be expected to continue to work in an atmosphere she perceived to be hostile, and in this circumstance the Tribunal must find that the claimant was constructively dismissed.

In awarding compensation for loss of remuneration the Tribunal must take into account unavailability to work due to injury and the limited evidence presented with regard to efforts to look for employment and accordingly the Tribunal awards €5,000.00, under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)