UD527/2013

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD527/2013

CLAIM OF:                                                                                                    

Patricia O'Dwyer                                                                                                                   

against

Dave Ryan

t/a Rios Takeaway

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. P. Wallace

Members:     Mr T. Gill

                     Mr F. Dorgan

heard this claim at Casletconnell on 23rd October 2014, 29^th, and 30th January 2015 and 13 May 2015

Representation:

Claimant :     Mr Gerry Hinchy, (13 May 2015 only)

Mr Fergus Murrihy, Redundant Workers Centre, St Mary's Adult Education Centre, Island Road, Kings Island, Limerick

Respondent :   Mr Leonard Parker BL instructed by

                         Melvyn Hanley, Solicitors, 16 Patrick Street, Limerick

Introduction

The claimant named the above respondent as her employer. However, it emerged during the course of the case that the respondent’s immediate family acted, at times, as her employer. The legal status of the workplace changed in August 2014 to that of a Rio’s Takeaway Limited and the respondent is listed as one of its directors.

Notwithstanding the above all parties to this case maintained that the correct respondent is as stated above.

Claimant’s Case

The Tribunal heard evidence from the claimant that she worked as a cook for the respondent’s fast food business. She commenced employment in 2007. She had a good working relationship with her employer known as (D) and received a pay increase within three months of the commencement of her employment. She outlined her duties to the Tribunal which included preparing and cooking food and cleaning as she performed her duties. On occasions she also worked at the front end of the shop, serving customers. She was trusted as a key holder of the business and regularly opened the shop at 6am.

She gave evidence that her working relationship with (D) deteriorated in 2012 when he believed that a member of her family who also worked in the shop had reported him to NERA. She had no knowledge of this matter. She was then forced into signing a contract of employment in May 2012 and the contract was back dated to 2007. She described the contract as a manufactured contract and did not receive a copy of it until august 2012.

She gave evidence that she was then told by (M), (D’s) mother that she, (M) was taking over the running of the business for six months. (M) requested that she take a €2 per hour reduction in her wages. She could not afford to take such a reduction and informed (M) of that. She told the Tribunal that she had already taken a €5 per hour reduction in her wages when she worked at the front end of the shop. She gave evidence that (M) began to criticise her work and became very aggressive towards her. She was told not to clean or wash as she worked and was prohibited from following health & safety guidelines. This resulted in her cooking in conditions where batter was stuck to the pans and to the floor. Her hours of work were also slashed. She had regularly worked 34 – 40 hours per week and these were reduced on two consecutive weeks to 12 and 13 hours per week. She was also asked to hand back the keys of the shop.

She gave further evidence that her cooking was being undermined and she was bullied and harassed by (J), (M’s) husband. She outlined instances of this bullying behaviour to the Tribunal. Eventually she suffered a panic attack while working in the shop. She attended her doctor in July 2012 and was certified as being unfit for work for one week. This was the first occasion she had been too unwell to prevent her from working.

This medically certified absence was followed immediately by a period of holidays which she had pre-booked. She returned to work following this holiday period and her working conditions remained the same. She gave evidence that on her return to work (M) said to her that her panic attack was probably brought upon by stress. She described her workplace as walking on eggshells. She told the Tribunal that she aired her grievances with (D) informing him of the way she was being treated but (D) did not respond to her, he just ignored her. She gave evidence that prior to the introduction of the new contracts (D) had called a meeting of all employees in March 2012 and stated that he did not want to hear of any grievances as grievances were only bitching and if anyone was bitching they would be shown the door.

She was finding her position extremely difficult and contacted her doctor again who certified her as being medically unfit for work. Eventually on 3 October 2012 she resigned from her employment as her position as a cook had become untenable and for health reasons she had no option but to resign. In her letter of resignation to the respondent the claimant gave specific accounts and incidents when she felt mistreated. She ended it by stating she had no other option but to do this. Up to January 2015 the claimant had not gainfully worked since her resignation. Up to the time of the NERA visit the respondent had treated her with respect-subsequent to it the opposite was the case.

Respondent’s Case

Apart from operating a take away business the respondent was also involved in other enterprises. This take away business was owned and managed by the respondent and his close family. During 2011/12 part of its management was undertaken by another employee with an emphasis on administrative duties. Subsequent to the commencement of the claimant’s employment the respondent opened and operated a city centre premises. Besides having a front of shop counter that premises also contained another non-public area where the claimant prepared food- mainly fish for later and anticipated consumption.

According to the respondent the claimant had a significant autonomy in how and indeed when she performed her duties. He described her input into the business as phenomenal adding that she was highly reliable and labelling her as the engine of the business. From 2007 up to 2010 the business was thriving. However, that situation changed adversely the next year as both revenue and sales fell. This resulted in financial difficulties for the respondent as efforts were made to keep the business viable. Those efforts included readjusted hours for some staff together with reductions in their remuneration. However, those changes were not imposed on the claimant as she was “the rock” on which the business was built on.

Due to notice from the national employment rights authority (NERA) that his business was to be inspected in spring 2012 the respondent strove to introduce and implement certain employment obligations it had previously neglected. These included payslips and the issuing of terms and conditions of employment to the staff including the claimant. The claimant signed her contract around that time but the witness took it upon himself to date it 1 March 2007. That document contained a brief section on a grievance procedure.

The respondent was adamant that this inspection did not influence or have any impact on the working relationship between the business and the claimant.

Due to the ongoing downturn in its fish sales the respondent approached the claimant in July 2012 about her work practices. Up to that time she had continued to prepare product as if there was no decline in its demand. The respondent wanted to use a preparation system called just-in-time-meaning only prepared and cook for short term needs. The claimant objected to the introduction of that system and was also hesitant to take on front counter duties. In addition she undertook unnecessary and excessive cleaning of her work area. The respondent never issued any form of sanction to the claimant as she continued to disregard instructions.

In early October 2012 the witness received a lengthy letter from the claimant who was then absent from work on health grounds. That detailed letter contained complaints of bullying, harassment and intimidation against him and his parents. That signed letter concluded with her writing that she was now resigning her position as cook with the take away. Despite expressing shock and disappointment at her decision the respondent accepted it and treated it as final. He did not ask her to reconsider her decision as he did not to “rock the boat”.

In denying the claimant’s allegations as stated in her resignation letter the witness insisted that the respondent did it could to facilitate her subject to the demands and constraints of the business. He described the self -termination of her employment as a major loss which at one time would have “sunk” the business.

The mother of the respondent had some responsibility for business decisions but stated that this son was the employer. She described her working relationship with claimant as friendly and polite. This witness rejected any contention that she ever abused the claimant and was never aggressive towards her. She approached the claimant and broached the subject of her work practices and conditions of employment in July 2012. The reaction was silence. The claimant was also unwilling to take a pay cut.  

A current employee confirmed that she worked for and reported to the family. While the respondent was regularly away his parents were almost always present. According to this witness the business was booming in the latter half of the last decade. The claimant’s input into the enterprise was amazing due to her tidy, fast and excellent work. The second outlet located in Limerick city centre “never took off” and overlapped with a decline from 2010/11in business in its flagship branch in Castletroy.

By July 2012 a revised preparation and cooking system was in operation in an attempt to control supply and to cut costs. According to the witness the claimant not only resisted that change but she never gave it a chance as she left the premises on 10 August 2012 and did not return to work. Concurrent with that behaviour the claimant continued to excessively clean the premises and would not demonstrate flexibility on hours and locations. This office manager commented that when the claimant feels she is right then there is no shifting her. She appeared to take all work issues personally following the visit of the employment inspector.

Evidence was given by two existing and one former co-worker of the claimant. All three witnesses stated the claimant was a good, honest and hard worker. Two of the three witnesses were present on one of the occasions the claimant alleges she was bullied and harassed by J (D’s father) and M (D’s mother). Both witnesses stated the claimant’s version of events had not occurred.

J (D’s father) gave evidence. He also stated the claimant was a good honest worker and a person of integrity. He refuted he had bullied the claimant. When questioned regarding an incident of intimidating the claimant by parking his jeep outside her home he replied that he was unaware it was her home address. He had been in the area to meet a businessman in the area regarding the potential purchase of a campervan.

Determination

The Tribunal have carefully considered the sworn evidence and submissions adduced over the four days of this hearing.

The claimant was employed in a position of trust by the respondent. Witnesses for the respondent gave evidence of how the claimant was such an excellent worker. A series of events lead to tension in the workplace. Certain aspects of changes in management lead to the claimant feeling under pressure, undermined and reluctant to attend work. There was a total lack of effort by the respondent to alleviate the claimant’s fears and feeling of isolation leaving her to suffer anxiety and stress which it turn left her, she felt, with no alternative but to resign.

The Tribunal find it, therefore, hard to understand if the respondent felt so highly of the claimant why they did not make any attempts to ask the claimant to return to work.

Accordingly, the Tribunal finds in favour of the claimant in this case and awards her the sum of €12,000 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)