EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Roksana Pasek UD1211/2013
against
Polish Groceries Galicja Ltd
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T O'Mahony BL
Members: Mr. J. Hennessy
Ms. S. Kelly
heard this claim in Thurles on 13 November 2014
Representation:
_______________
Claimant(s):
Ms. Beata Kudla, 5 Connolly Park, Clonmel, Co. Tipperary
Respondent(s):
There was no attendance by or on behalf of
Sean Ormonde & Co, Solicitors,
Suite 9, The Atrium, Canada Street, Waterford
The determination of the Tribunal was as follows:-
Summary of Evidence
The respondent owns a number of shops throughout the country selling Polish food products and has around 20 employees. The claimant, who commenced employment with the respondent on 1 August 2010 as a sales assistant, worked alternative shifts with the other employee (AE) in the respondent’s shop in Clonmel. The claimant was the longer serving of the two employees.
The respondent was dissatisfied with the claimant’s performance and between July 2011 and December 2012 issued her with three written warnings for failing to fully follow business procedures. On 25 July 2011 she was issued with a warning in respect of her failure to regularly input invoices onto the database causing failures in stock management and leading to increased costs for the business. A second warning was issued to her on 16 January 2012 for negligent stock management in that she was ordering too much stock which was not being sold prior to its expiry date. The third warning issued on 17 December 2012 was for delays of a week or more in lodging the shop’s takings in the bank rather than every two or three days. The final straw for the respondent was the claimant’s failure to open the store on Saturday 10 May 2013 resulting in its remaining closed for the entire day. It was the respondent’s evidence that in a conversation with OS (one of the directors of the respondent company) the claimant denied knowing that she was due to work on 10 May but she later admitted to his wife /co-director (WO) that she had known that she had been due to work that day.
OS admitted that the business had been mainly run by WO and it was she who met the claimant in the shop on 17 May at the end of her shift and dismissed her. In the letter of dismissal dated 17 May 2013 WO cited the claimant’s breach of duty on 10 May 2013, the earlier warnings and the respondent’s lack of trust in her to act in the best interest of the respondent, which was vital for the respondent as the owners did not live in Clonmel. The claimant was given two weeks’ notice that her employment was to terminate on 31 May 2013.
It was the claimant’s position that the respondent wanted to dismiss her because the owners wanted to close the shop. Her first years with the respondent had been trouble-free but latterly everything she did was a problem. As regards the warning as to how she dealt with invoices, the claimant’s position was that she did not receive any training in dealing with the invoices and the employees had to learn it themselves. She was not ordering too much product but the respondent often provided stock close to its expiry date. The respondent had instructed them to lodge money only once a week. She did not order too much. She regarded WO as her boss but had only met her about three times in the three years she worked in the shop. WO issued the warnings to her over the phone. She had not known that she was to work on Saturday, 10 May. When she was out shopping she noticed that the shop was closed and phoned the Cahir shop about it.
The claimant had been out sick for around two months until 8 May 2013 and another girl (EK) had been employed in her place. On her return to work she was given the dates and hours of her shifts for the following few weeks and these were far less than she had been doing prior to her illness. When she raised the issue she got no satisfaction. She worked just three days on her return. When she was out shopping on the Saturday she noticed that the shop was closed. She contacted Ms K who was working in the Cahir shop that day and she did not know why it was closed. The Clonmel shop has since been closed down.
Determination
The claimant’s hours were reduced on her return to work after her sick leave and when she complained about it she got no satisfaction. The Tribunal accepts her evidence that she did not know that she was on duty on 10 May.
It was WO and not OS who dealt with the employees. OS did not attend the hearing to give any evidence to the Tribunal. Thus, the respondent failed to discharge the onus placed on an employer by section 6 (7) to show that there were substantial grounds to justify the dismissal. Furthermore there was no evidence from which the Tribunal could conclude that fair procedures had been applied in dismissing the claimant. Accordingly, the dismissal is unfair.
The claimant found new employment earning a higher wage shortly after her dismissal. Having regard to the claimant’s financial loss attributable to her dismissal the Tribunal unanimously deems it just and equitable to award the claimant compensation in the amount of €3,200.00 (three thousand two hundred euro) under the Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)