ud373/2013, mn200/2013, wt55/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIMS OF:                                                                                                                              CASE NO.

Mary Delaney,     - Claimant                                                                                                   UD373/2013    

                                                                                                                                                MN200/2013

                                                                                                                                                WT55/2013

against

The Phone Store T/A Lorat Trading Limited,  Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

ORGANISATION OF WORKING TIME ACT, 1997

I certify that the Tribunal

(Division of Tribunal)

Chairman:         Ms D. Donovan B L

Members:         Mr. J. Browne

Mr. N. Dowling

heard this claim at Wexford on 23^rd June 2014

Representation:

Claimant:                      Padge Reck, Sunrise, Mulgannon, Co. Wexford

Respondents:               Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor,

                                    Block S, Eastpoint Business Park, Dublin 3

Claimant’s Case:

The claimant gave evidence that she was employed as a Sales Assistant in the respondent’s phone store from the 1^st February 2005. She was employed in the branch in Wexford town and as time progressed she was promoted to Store Manager in 2006.

In 2009 she was offered the position of Business Account Manager. It was verbally agreed, she states, with the owner (PS) that if this position did not work out she would revert back to the position of Manager in Wexford. In 2010 she became pregnant and informed PS. She returned to her position as Manager in the Wexford store. She commenced maternity leave and on her return it was agreed, at her request, that she would return to work on a part-time basis.

In July / August PS requested she travel to Dublin to assist in the call centre and thereafter she had been asked to go to the Dungarvan store to sort out problems that had arisen there.

In September PS asked her to return to the Wexford store. During this time she had moved house and was now residing in Kilkenny. She told the Tribunal that she refused to return to the Wexford store as the commute would be too arduous.  

On or about September 2012 the claimant said she was contacted by a new Area Manager (JOD) who informed her that the staff of the Dungarvan store did not like her and did not want to work with her. She met with JOD in a café on the 19^th September 2012. JOD informed her she had received emails and had had discussions with the staff involved. The claimant told the Tribunal that she felt JOD acted very unprofessionally by holding this meeting in a very public area. A friend contacted her and told her he had overheard the conversation between the claimant and JOD whilst he was present in the café. The claimant was very upset. She did not return to work.

The following day she spoke to PS who said the conversation should not have taken place in a public area. He said it would be sorted out.

On the 25^th September 2012 the claimant received a call from JOD asking why she had not returned to work. She responded by email to PS. She attended a meeting on the 11^th October 2012; her representative was not allowed attend. PS, an Area Manager (JB), the claimant and a note taker (IK) attended. The claimant requested the staff statements regarding her but only received them after the meeting. The claimant activated the grievance policy. In their conclusion the respondent held that it “cannot find sufficient grounds to substantiate your grievance”. The claimant was given 7 days to appeal the decision but only received all the statements and minutes of the meeting one day before the appeal deadline. She appealed the decision. She never returned to work and never received her P45.

Adjourned to 21 October 2014:

Evidence heard on 21^st October 2014:

The claimant was cross-examined by the representative for the respondent. She was asked when had she resigned and she told the representative that the last day she worked was 19^th September 2012. It was put to her that she said in her evidence that she was “technically” still employed. She explained that she meant that the respondent still has her P45 so she was “technically” still employed. It was put to her that she had not resigned and she explained that no one told her where she was supposed to be working. The claimant agreed that she felt that she had to leave on 19^th September 2012.

Regarding the meeting in the coffee shop she felt that it could have been dealt with a lot better.

She felt that the situation arose because she refused to go back to Wexford. Regarding where she could have gone to work she explained that she would have considered a position in Kilkenny on a part-time basis or anywhere on a part-time basis. She had not told management this but she had told management that she would not return to Dungarvan.

Regarding mediation the claimant agreed that she did not engage in mediation. She had not done so because she had lost all faith in the respondent.

The respondent representative made an application to the Tribunal to determine whether in fact the claimant had resigned and whether the claimant had discharged the onus of proof.

Determination:

Having heard the claimant’s case the Tribunal on the application of the respondent made a determination on the following:

(1)               Whether the claimant had in fact resigned and

(2)               Whether the claimant had discharged her burden of proof.

Regarding (1) the Tribunal having considered the evidence of the claimant finds that the claimant deliberately absented herself from work on the 19^th September 2012 when she was told that four of her co-workers had made complaints about her.   She did not unambiguously leave her job to the extent that her leaving operated to terminate her contract of employment there and then.   Rather she absented herself with an ultimatum to the respondent that she would only return if the respondent transferred her to a work location other than Dungarvan and any such new location would need to be within a suitable travelling distance of her home.  

By absenting herself from her employment the claimant repudiated her contract of employment.   However, the Tribunal finds that there was no acceptance of the repudiation by the respondent and to this extent the contract of employment between the claimant and the respondent had not been terminated.   Nonetheless, the Tribunal finds that the claimant considered her employment terminated on 18^th January 2013 when she submitted a claim for unfair dismissal to the Tribunal albeit at no stage did the claimant inform the respondent that she had resigned.   However, the claimant did at all times from 19^th September 2012 make it clear to the respondent that she would not be returning to work in Dungarvan.  

Regarding (2) the Tribunal considered if what the claimant said was true did it entitle her to resign and consider herself constructively unfairly dismissed.   The Tribunal finds that in order to so entitle her the conduct by respondent must be sufficiently grave as a reasonable employee in that same position would easily have been driven to leave the job there and then.   Taking into account the particular facts of the case in hand, being that four of the claimant’s co-workers had made complaints about her and that the first informal meeting was held in a coffee shop, the Tribunal finds that this was not conduct by the respondent such as entitled the claimant to consider herself constructively dismissed and to fix the respondent with liability for an unfair dismissal.

The Tribunal accepts that it may not have been pleasant to be informed that colleagues had made complaints about you and that all parties, claimant and co-workers, were entitled to have the matter dealt with but the Tribunal finds that the respondent did and was dealing with it and had offered mediation to all parties.   The Tribunal further notes that until the claimant had been informed about the complaints she was on her own evidence unaware of any issues between her and her co-workers and that as far as she was concerned all was well which indicates that whatever her co-workers felt about her they were not displaying it in the workplace.

Accordingly, the Tribunal finds that the claim under the Unfair Dismissals Acts 1977-2007 fails.  

The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, fails.

The Tribunal finds that the claim under the Organisation of Working Time Act 1997 succeeds and awards the claimant pay in lieu of two full days’ holidays.   The Tribunal notes the undertaking of the respondent that this entitlement will be paid and that the failure to pay it arose due to inadvertence rather than a deliberate intention not to comply with its obligations under the Act.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)