EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1583/2013
CLAIM(S) OF:
Rodica Panturu
against
Dunnes Stores
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. C. Corcoran BL
Members: Mr. C. McHugh
Ms M. Mulcahy
heard this claim in Dublin on 2 June 2015
Representation:
_______________
Claimant(s):
No legal or trade union representation at the hearing
Respondent(s):
Ms. Fleur O'Shea, Byrne Wallace, Solicitors, 88 Harcourt Street, Dublin 2
and
Mr. Marcus Dowling BL instructed by Byrne Wallace Solicitors, 88 Harcourt Street, Dublin 2
This was a constructive dismissal claim brought after the claimant’s night packing job ceased at a particular site. The respondent’s position was that it had offered suitable work to the claimant at a site not far from where the claimant had worked. However, the claimant had resigned because she did not find the offer acceptable given that it would entail greater travel time and expense.
The respondent’s representative said that an equality claim had been heard but that no result had issued. He objected to the claimant re-running that. The respondent’s case was that the claimant worked on night packing which had been abolished. The claimant had been offered night packing elsewhere.
Claimant’s Case
Giving sworn testimony, the claimant made use of documents although the respondent’s representative objected to this as being contrary to the rules of evidence. The claimant gave the Tribunal copious detail about her work and the respondent’s attempt to offer an alternative. She told the Tribunal that she had been a very good employee. She had complained to HR when her work decreased. The respondent had then offered a transfer to another site which the claimant told the Tribunal was even further from her home such that the respondent had known that she would refuse. HH (a trade union official) wrote a letter on her behalf but the claimant felt that she also had to engage with the respondent on her own. She wanted a transfer that would suit her but she felt obliged to take or leave what the respondent had offered. She felt that she had no option but to resign. The respondent was to get back to her but did not do so. She managed to secure other employment after leaving the respondent.
In cross-examination it was put to the claimant that there had been a dip in demand for night pack work. The claimant carefully examined how a move to another location would affect her particularly in terms of commuting distance.
It was put to the claimant that the respondent had offered her suitable work but the claimant rejected this contention and the allegation that she was being deliberately obtuse. She said that she was being treated as if she were being unreasonable. When she was asked if she wanted more than redundancy she replied that she wanted justice and that what she had been offered had been unsuitable.
Respondent’s Case
Taking an affirmation to give truthful testimony, FOS told the Tribunal that she had told her secretary to prepare a map with site locations in terms of distances the claimant might have to travel.
In cross-examination it was put to FOS that a toll was payable for motorway travel and that the claimant would have had to deal with heavy traffic. The respondent’s position was that she was not entitled to more than redundancy. However, even if redundancy and holiday pay were on offer, the claimant said that she did not trust the respondent.
In a closing statement the respondent’s representative said that he could not understand how the claimant could claim constructive dismissal. Night pack work had been abolished. The claimant had been out sick but had become fit. She had not been able to work with a particular individual. She had got a written offer of alternative work. One offer was only four kilometres further away. It was submitted that it was a suitable offer of alternative employment. The Tribunal pointed out that no-one had got into the witness-box to say this.
The claimant closed by saying that the respondent had known that she would refuse an offer that would involve childcare and transport costs. Ten euro per week would cost her over five hundred euro per year. She would not earn as much as she should. She had a child and had to pay a mortgage.
Determination:
The Tribunal heard sworn testimony from the claimant. A solicitor for the respondent took an affirmation to detail the respondent’s efforts to assess any difference between the claimant’s old regime and what was offered to her as an alternative.
Having carefully considered the documentation provided and the testimony adduced, the Tribunal was unanimous that there was not sufficient change in the claimant’s work to justify her decision to resign and claim constructive dismissal.
The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)