EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Olivia Maher, UD1327/2013
(claimant)
Against
Brian Macdonnell T/A Old Macdonnell's Farm,
(respondent)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr J. Goulding
Mr J. Jordan
heard this claim at Dublin on 21st November 2014
Representation:
_______________
Claimant(s) : Siobhan Gaffney B.L. instructed by Murphys, Solicitors, Mount Clarence House, 91 Upper George's Street, Dun Laoghaire, Co Dublin
Respondent(s) :
Wesley Hudson, Hudson Solicitors, Kingston House, 64
Patrick Street, Dun Laoghaire, Co. Dublin
The determination of the Tribunal was as follows:
The fact of dismissal was in dispute.
Respondent’s case
The claimant worked as a bookkeeper for the respondent company for a period of five years, commencing employment in May 2008 on a part time basis.
In May 2013 the claimant had been out of work for two weeks, one week certified sick leave and a second week uncertified. On her return on 14th May 2013 she stated that there was a considerable build-up of work and she had to prioritise the important tasks.
The claimant gave evidence that the respondent became animated and held his hands up to her face and stated “aren’t you lucky to have a job”. It is denied by the respondent that he held his hands up to her face but he agrees that he probably said this to her, he said it to all his employees in the context of the challenging economic times.
On 16th May 2014 the claimant emailed the respondent’s wife regarding her work load following which the respondent’s wife telephoned the claimant. The claimant says she spoke only with the respondent while the respondent stated that she spoke both with him and his wife.
It is the respondent’s evidence that his wife spoke with the claimant and asked her to take some time off to ‘get her head together’. The claimant asked whether she was ‘sacking her’ and the respondent took over the telephone call from his wife. When the claimant asked him whether she was ‘sacked’ he said no, absolutely not. He asked that she take 3 or 4 weeks off work ‘to get her head together’ but she was not let go from her job. (The claimant stated that this suggestion of 3-4 weeks off did not arise on this phone call but happened some two weeks earlier and was suggested by the respondent’s wife.) The respondent then stated that the claimant repeated the words ‘are you sacking me’ and he said no however the claimant then said ‘give me my cards and P45’. The respondent took this to mean she was resigning.
That same day the respondent wrote to the claimant stating how upset he and his wife were that the claimant was unhappy, wishing her the best for the future. He gave evidence that he did not think the parties could resolve matters and felt he looked after the claimant as best he could.
The claimant e-mailed the respondent on 17th May, 2013 requesting her P45 and monies owed.
Under cross-examination, the respondent denied that the claimant had a heavy workload as his wife also carried out some bookkeeping duties. He did not expect the claimant to carry out a work request immediately and he felt he communicated this to her. He further denied that the claimant “trained-in” a part-time accountant although he confirmed that she familiarised the accountant with the job. In reply to the Tribunal, the respondent indicated that the claimant was not replaced. His wife is now responsible for the bookkeeping along with the part-time Accountant. The respondent also confirmed that there were no procedures in place to allow an employee address any work related issues.
Claimant’s case
The claimant told the Tribunal when she commenced work with the respondent her role was limited to imputing invoices and bills. The role developed over time to include doing bank reconciliation/statements/sales reports/label printing/Vat returns/wages and some work in the factory. After a two week break from work due to illness the claimant returned to work on 14th May, 2013. There was a backlog of work to be done and she felt she needed to prioritise the important matters. On 15th May 2014 the owner’s wife was in the office asking the claimant to carry out duties. When the claimant went over to the main house, she met the respondent who handed her two folders and asked her to do a milk report. The claimant indicated that she had a considerable amount of work to do and felt that this was not a priority following which the respondent said “aren’t you lucky to have a job” while putting both hands up in front of the claimant.
The claimant gave evidence that she was very upset by this incident. On 16th May 2013 she emailed the respondent stating that she was not coming into work. She further stated that she felt over worked in her job and would like to discuss this with the respondent on her return the following morning. It is the claimant’s evidence that the same day the respondent himself telephoned the claimant and said “you’ve been sick a lot, we’ll call it a day”. When the claimant asked “are you firing me”, he replied “yes I am”. The claimant e-mailed the respondent on 17th May requesting her P45 as she needed this in order to claim social welfare. The claimant gave evidence that she did not resign. There was no reason she would resign from her job as she needed the money and liked the work.
The claimant gave evidence of loss and her efforts to mitigate her loss.
Determination
The Tribunal considered the evidence of both parties carefully. While the evidence of both the claimant and the respondent appeared credible there was a conflict on all the main points in this case. All that is agreed is that there was an incident on 15th May 2013 that led to this situation. It is the respondent’s position that the claimant resigned her position and it is the claimant’s case that she was ‘fired’.
It is clear to the Tribunal is that there was a complete lack of communication between these parties. This is particularly unusual in circumstances where both parties agree that there had been a very good working relationship between them up until May 2013. What appears to the Tribunal to be a minor run of the mill incident on 15th May 2013 turned into a situation that led to a hearing before this Tribunal, which could have been avoided. What is also unusual to the Tribunal, given the claimant thought she was dismissed and the respondent thought she resigned, is that neither party at any stage sought to correct the others apparent misunderstanding of the situation. This is supported by the email dated 17th May 2013 where the claimant states ‘I need Brian to write a letter stating that he let me go’. If this was not the case surely the respondent would have contacted the claimant and clarified this point at this juncture. Furthermore, the letter dated 16th May 2013 from the respondent to the claimant focuses heavily on the claimant’s dissatisfaction with her job and her recent illness but there seemed to have been no time taken between 14th May and 16th May to actually address these issues, rather the within situation ensued. The Tribunal believe that there is a higher onus on the employer in the present situation to address conflict in the workplace and the manner in which the within matter was dealt with by the respondent is not satisfactory. Although the respondent stated in evidence that he did not think the parties could resolve matters it is clear he made no effort whatsoever to do so.
By majority decision, one member dissenting, the Tribunal believe the claimant was unfairly dismissed and awards the claimant the sum of €1,500 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)