UD1130/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                               CASE NO.

Lorraine Nugent

 - claimant                                                                                                      UD1130/2013

Against

Eyre Street Sbh Limited T/A Revive Cafe

- respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms C.  Egan B. L.

Members:     Mr T.  Gill

                     Ms H.  Murphy

heard this claim at Galway on 3rd December 2014

Representation:

Claimant(s) : Mr Patrick Higgins and Ms. Ciara Kelly, Keane Solicitors,

                      Hardiman House, Eyre Square, Galway

Respondent(s) : Mr Alistair Purdy Solicitors, Kilartan House, Forster Street, Galway

The determination of the Tribunal was as follows:-

Summary of Evidence

Dismissal was in dispute in this case. The claimant submitted that she was “fired” and the respondent submitted that the claimant “walked out”.

The claimant worked as a waitress in a busy café. She commenced employment at first on a part time basis while in college and after three years became a full time employee. She had no contract of employment and no access to an employee hand book. This was not disputed by the respondent.

An incident with a director of the respondent company took place on the 31 May 2013. The food bell rang a number of times in quick succession. The respondent director called out loudly for ice from the ice machine which had earlier been turned off as it was not working properly. The claimant in response asked if in future he would not call out in such a manner. The respondent director was at the hatch area “shaking with anger” and “ringing the food bell with a kitchen knife”. The claimant stated that she was scared and that he addressed her saying he would call her in whatever manner he wished. Customers heard the exchange and the claimant stated that she was hiding her upset. When another employee took over, she was unable to control her distress. She telephoned her mother who advised her to finish her shift. The second director (MO’R) arrived later and a brief conversation took place between them about the events of the day. The claimant did not report the incident to MO’R that day but believed that she must have noticed that she had been crying. The claimant finished the clean up and locked up that evening. She returned to work at 7.30am the following morning in the hope that what happened the previous day would be resolved. The claimant stated that she never wanted to leave her employment. At 9.30am the café manager arrived and she informed him that she felt “anxious and unwell” and with his permission went home. The claimant denied she said “I am out of here” and denied giving the impression that she was leaving her employment. On the following day she received a message from MO’R which made reference to how unfortunate it was how she had left. The claimant responded indicating that she had not walked out. Her interpretation of that message was that she had been “fired” by MO’R. A further communication from MO’R on the Monday was interpreted as confirmation of her decision. The claimant engaged a solicitor and requested that all further communication from M’OR be directed to the solicitor. A letter dated 18 June 2013 from the claimant’s solicitor to the respondent was opened to the Tribunal. Prior to the incident, she had no disciplinary or performance issues on her record and had received a pay rise.

The claimant did not reply to a text from MO’R inviting her to meet on the 16 June 2013 and again on the 19 June because she felt as two weeks had passed, the decision to fire her was final and she had received her P45 from the respondent.

MO’R gave evidence of employing the claimant while a student, as she was a friend of the claimant’s aunt. She manages the day to day business while her husband manages the food side. The claimant was trained over the course of her employment and became full time in June 2012. On the 31 May 2013 MO’R arrived at the premises in the late afternoon and had a brief conversation with the claimant about business that day. The claimant informed her it was a hectic day and everything appeared fine. MO’R had no knowledge of any incident between the claimant and her husband until she got home that evening. If the incident was serious she believed the claimant would have phoned her. The following morning while packing for a family holiday abroad the café manager informed her that the claimant had “walked out” and would not be back. Prior to this, the claimant was aware that any time off must be approved by MO’R and not the manager as she (MO’R) had responsibility for rosters. As she was going on a two week holiday abroad and the claimant had left, she had to reorganise the roster for the next two weeks. MO’R calculated the claimant’s holiday pay entitlements and prepared a P45 which she left with the manager. On the following day the 2 June 2013 MO’R sent a text message to the claimant expressing her disappointment in the unfortunate manner in which the claimant decided to leave her employment, and that the claimant should have spoken to her about it. In a further text message to the claimant on the 3 June 2013, MO’R again reiterated her disappointment pointing out that the café was left without cover on the Saturday of a bank holiday weekend, necessitating MO’R having to arrange at very short notice coverage for the claimant’s shifts, on the eve of taking her own holidays. However, MO’R indicated in the aforementioned text message that she would be back from holiday on the 15 June 2013 and suggested a meeting with the claimant for the 16 June 2013. The claimant did not respond to this invitation.

MO’R was anxious to speak to the claimant on her return from Holiday. Subsequently, on the 19 June 2013, MO’R, by text message invited the claimant “in for a chat to discuss what happened and how we go forward”. On the 20 June 2013 the claimant replied by text message indicating that a letter from her solicitor should have been received by MO’R and to forward “any proposals in writing to the solicitor”.

On receipt of the solicitor’s letter on the 20 June 2013, MO’R replied to the claimant by text message and again invited her to a meeting. The claimant declined the offer. Subsequently, a letter dated the 28 June 2013 setting out the respondent’s position from MO’R to the claimant’s solicitor was opened to the Tribunal. MO’R received no response to the letter. 

Determination

Having carefully considered all of the evidence before it, the Tribunal found no evidence that the respondent terminated the claimant’s employment. In the present context, the issuing of a Proforma  P45 does not necessarily constitute a termination. The respondent, being anxious to resolve matters requested a meeting with the claimant on two occasions. The claimant declined the offers and referred the respondent to her solicitor. The claimant gave little or no consideration to the fact that the respondent was on holiday abroad making it difficult for the respondent to deal immediately with her grievance. Indeed, the claimant did not demonstrate any effort to resolve her grievance or attempt to remedy her complaint by engaging with the respondent prior to the issuing of legal proceedings.

In the light of all the circumstances, the respondent acted reasonably in her efforts to resolve the claimant’s grievance.

The Tribunal finds that no dismissal took place and the claim under the Unfair Dismissals Acts, 1977 to 2007 is dismissed.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)