EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Grainne Ryan UD1613/2013
Claimant
against
Dominate Limited T/A Dominio’s Pizza Crumlin
Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey BL
Members: Mr T. O’Grady
Mr N. Dowling
heard this claim at Dublin on 2nd January 2015
and 26th February 2015
Representation:
Claimant: Mr. Eamonn Dornan BL instructed by:
Brian Trayers, Trayers & Company Solicitors, 29-30 Ushers Quay, Dublin 8
Respondent: Ms. Christina Ryan BL instructed by:
Diarmuid Coen, Eames Solicitors, 2 Malt Square, Smithfield, Dublin 7
The decision of the Tribunal was as follows:-
Background:
The respondent company retails as a take away and delivery service of pizza. The claimant was employed from the 22nd August 2007 as a Crew Member. In October 2012 she was promoted to Shift Runner (Manager of shift) and had received a contract of employment.
On the 5th April 2013 an incident occurred in relation to the claimant and, having investigating the matter, she was demoted to Crew Member and was notified by letter dated the 28th June 2013, her salary was not altered because of her demotion. The claimant appealed the decision but this decision to demote her was upheld. The claimant never returned to work.
The issue of dismissal is in dispute.
Claimant’s Position:
The claimant gave evidence of her employment history with the respondent company. She explained that she was in receipt of a contract of employment but could not recall if she had received a copy of the company handbook. However, she was well aware that all health and safety issues were to be reported to the Store Manager.
The claimant explained that the Store Manager (SJ) in situ of the premises she was employed was in fact her husband whom she had married in 2013. In mid February 2013 the claimant’s family home was broken into involving a sibling of hers. Keys and paperwork belonging to the claimant’s husband (SJ) were removed. A personal family dispute continued.
On the 5th April 2013 the claimant was on a day’s leave. She approached the respondent’s premises with her four year old son to meet her husband (SJ) to have a family day out. On her arrival she observed her sister in a car outside the premises. SJ called out to her, the claimant, and told her to come into the shop as he had just received a telephone call from his sister-on-law minutes before. To avoid any incident she, the claimant, entered the store with her son entered the store. The claimant then left the premises to try to persuade her sister to leave the area. The claimant told the Tribunal that she had left her son in the care of the Manager in Training (A) having first asked SJ as Store Manager. She returned to the premises 20-25 minutes later to collect her son and left.
On the 16th May 2013 the Area Manager (GC) submitted a letter to her informing her of an email received from the respondent’s Head Office in the UK regarding an anonymous complaint regarding the “unauthorised and unsupervised access to the shop of a minor”. The respondent had viewed CCTV footage of the date highlighted and it appeared this incident involved the claimant and a child, her son. The CCTV footage was offered to the claimant for her to view. The claimant was informed she was suspended with pay pending an investigation.
An investigation meeting took place between the claimant and GC on the 29th May 2013 where she viewed the CCTV footage from the day in question. She explained to GC it had been a “panic situation” on the day in question and this was why she had left her son on the premises. She had wanted to avoid any incidents occurring on the respondent’s premises and had asked permission of the Store Manager (SJ) to do so. It was he, SJ, who had requested A to keep an eye on the four year old child. She enquired when the email of complaint had been received by the respondent. GC replied that he had only received it some days previous. She stated to the Tribunal that no mention of any complaint had been made regarding the day in question which had occurred some five weeks previous to the meeting even though she had seen GC during this time.
A disciplinary meeting was then held on the 25th June 2013 with the Operations Manager (PB) to discuss the matter in full. A letter dated 28th June 2013 was sent to the claimant informing her she was being issued a final written warning and was to be demoted to the position of Crew Member as a result of the incident on the 5th April 2013. She was given the right to appeal the decision. She submitted an appeal in writing to the decision but later decided not to attend any hearing. The claimant told the Tribunal that she deemed the demotion to be a dismissal and could not understand why such a sanction would be deemed appropriate in circumstances were she had had no previous disciplinary issues in her six year employment with the respondent. She did not return to work for the respondent.
She gave evidence of loss.
On cross-examination she stated that she was the only person to be investigated regarding the incident, her husband (SJ) never was. She said that she had acted in compliance with company procedures and had asked the Store Manager’s regarding her son but did accept it was unacceptable to have a four-year old child on the premises. She told the Tribunal that she had informed GC of the family feud, PB was also aware of the situation.
When asked, she agreed the letter to inform her of her demotion had not mentioned the word dismissal. She was not aware that her demotion in position did not incur a decrease in her salary.
The claimant’s husband (SJ) and Store Manager gave evidence. He explained the situation of the break-in that had occurred in his and the claimant’s home two days before their wedding on the 21st February 2013. The respondent became aware of the incident a week later.
On the day in question he had given the claimant, his wife, permission to bring her young son onto the premises and into the office. He had been on duty that day. He asked one of his junior Managers (A) to watch over this child as he and the claimant had to leave the premises for, what he thought, would be five minutes. They left and returned about a half hour later. All three of them then left the premises together.
On the 15th April 2013 he worked alongside GC but no issue was raised concerning any alleged incident that had occurred with the claimant some ten days previous. The following day he attended his doctor who certified him on sick leave for a period of one week due to stress and anxiety. This period of certified sick leave was extended by his doctor for a further week.
On the 1st May 2013 SJ was informed that he was suspended from his position with the respondent. This matter was not related to the incident of the 5th April 2013. He was later dismissed by the respondent.
On cross examination he said that he had never been contacted during his period of sick leave regarding any investigation into the incident of the 5th April 2013. However the respondent had been in contact with him during this time regarding another issue. He told the Tribunal that the respondent had been fully aware of the situation between the claimant, himself and the claimant’s family.
Respondent’s Position:
GC and PB gave evidence of behalf of the respondent.
GC stated that on the 16th April 2013 he was requested to carry out an investigation into an alleged incident on the 5th April 2013. He discussed the matter with PB and it was decided that as SJ was absent on certified sick leave the investigation would be put on hold until his return as three people had to be interviewed – the claimant, A and SJ. When he became aware SJ would be absent on sick leave indefinitely he and PB decided it was time to commence the investigation. He received a copy of the email of complaint and the CCTV footage some days before the 16th May 2013. He interviewed both the claimant and A. He never had the opportunity to interview SJ.
On cross examination he said that the claimant had not made him aware there was a family feud or that there was any threat towards her and her family. He said he could not recall if he had asked the claimant why she had left the premises and her child inside but felt he had given her ample opportunity for her, the claimant, to put her case forward. He told the Tribunal that he felt he had carried out a fair investigation into the matter. He informed the Tribunal that it was not custom and practice for children to be brought or left on the premises by staff.
PB told the Tribunal that he had instructed GC to carry out the investigation. On the 16th May 2013 he held the disciplinary meeting with the claimant and had made the decision to demote her. He felt he had given her every opportunity for the claimant to explain what had occurred on the day in question. Having considered the matter and the length of her service he decided to issue her a final written warning which would remain on her personal file for a period of twelve months and to demote. This demotion would not incur a decrease in salary. She was given the right to appeal this decision. The claimant did appeal the decision but did not attend the meeting. She did not return to work and texted another Store Manager to inform him she was “not prepared to take this demotion as it constitutes dismissal”.
On cross examination he said the junior Manager (A) had received a verbal warning for his actions on the 5th April 2013.
Determination:
Dismissal was in dispute in this matter. The claimant regarded the demotion of her position as a dismissal. The respondent stated they had not dismissed the claimant.
Having carefully considered all the evidence and submissions adduced the Tribunal finds a dismissal did not occur in this case as the claimant left of her own accord. Accordingly the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)