EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD53/2014
CLAIM OF:
Yusuf Khan
against
Aldi Stores (Ireland) Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr D. Peakin
Mr. J. Dorney
heard this claim at Dublin on 26th February 2015, 2nd June 2015 and 3rd June 2015
Representation:
Claimant: Mr. Alan Crossan, Crossan Hanratty & Co Solicitors, 146 Sundrive Road,
Crumlin, Dublin 12
Respondent: Mr. F. Drumm BL instructed by:
Vincent & Beatty Solicitors, 67/68 Fitzwilliam Square, Dublin 2
Claimant’s Case:
As dismissal was in dispute the Tribunal directed that the claimant go into evidence first. On the one hand the claimant alleged that he had been dismissed on 20th August 2013 by virtue of the actions and comments of his supervisor, an assistant store manager. On the other hand the respondent asserted that the claimant had left, claiming constructive dismissal which was confirmed in a letter from his solicitor’s letter of 29th January 2014.
The respondent is a large supermarket chain and the claimant commenced employment in it’s Parnell Street store on 6th June 2002 as a Store Assistant. Following some difficulties with the Store Manager in Parnell Street the claimant was transferred to the Long Mile Road store in 2007. The claimant was happy working in this store until a colleague (who had previously worked as a Store Assistant alongside the claimant) was promoted to Assistant Store Manager (AB) in this store in February 2013. From then on the claimant felt that he was being bullied by AB. Initially the claimant did not make any complaint in respect of this alleged bullying because he felt it would not go well for him.
The claimant told the Tribunal that on 20th August 2013 AB approached him on the shop floor and was shouting at him about his performance at work in front of customers and other staff. The claimant asked to talk to AB in private and they proceeded to the warehouse wherein AB told the claimant that he was suspended, he was finished in the company and should not to come to work the next day. The claimant took this to mean he had been dismissed.
The respondent subsequently commenced an investigation into the matter and concurrently the claimant lodged a formal complaint concerning AB’s behaviour towards him. Both matters were dealt separately by the respondent and the claimant remained on suspension with pay pending the conclusion of these matters. By letter dated the 5th September 2013 the respondent stated the investigation was complete and that there was to be no disciplinary sanction against the claimant in respect of the incident of 20th August 2013. He was invited to return to work on 9th September 2013 in a telephone conversation with EM, the Area Manager. The claimant returned to work briefly (for about half an hour) on 9th September 2013 believing that AB would not be there due to this behaviour on the 20th August 2013. However when the claimant discovered that AB was still working in the store he left the workplace. The claimant subsequently engaged in communications with the Area Manager (EM) and remained on full payment until the end of September 2013.
When questioned about what he thought would happen to AB as a result of the incident on the 20th August the claimant stated that he wanted AB “stepped down” or transferred to another store. He later stated that he wanted AB dismissed in accordance with the respondent’s disciplinary manual. In a conversation with the Store Manager on the 9th September 2013 the claimant indicated that he wanted an assurance that the respondent would take matters seriously and that action would be taken against AB. Unless and until this was done he did not feel he could return to work with AB.
The claimant’s grievance was investigated and a letter issued on the 18th September 2013 upholding parts of the grievance. It confirmed that the incident on the 20th August 2013 did not warrant suspension which said suspension had been lifted on the 5th September 2013. The claimant was offered an opportunity to appeal any part of the grievance outcome but did not avail of that option. He felt any such appeal would be pre-determined and he would not get a fair appeal.
At a meeting between the claimant and EM, the Area Manager, on the 24th September 2013 the claimant was told that the investigation into his complaint of bullying had been completed but EM refused to say what sanction, if any, had been imposed on AB. The claimant was not happy with this and was not willing to return to work under the supervision of AB. His evidence was that he could not return to work in the Long Mile Road store until “action was taken against the oppressor”. The claimant felt that nothing was being done in relation to AB and that his issues were not being adequately addressed by the respondent.
Following the meeting the respondent informed the claimant that he could return to work on 1st October 2013 but in the Palmerstown store rather than in the Long Mile Road store. The claimant felt that this was unfair as he was the victim of bullying and no action had been taken against the bully. He felt that he was being penalised by having to transfer. The claimant did not return to work. A series of correspondence issued to the claimant from the respondent between October 2013 and December 2013 requesting him to return to work in wither the Palmerstown store or the Long Mile Road store. The claimant replied once in a letter dated the 5th December 2013 stating that he believed that the respondent was not being fair to him and that AB should be sanctioned. He believed the letters were written to him as a “tick-boxing” exercise only.
On cross examination confirmed that he received the various correspondence concerning his return to work and understood that the respondent would not hold his job open for him indefinitely. He further understood the significance and the consequence of receiving the final letter dated the 31st December 2013 containing his P45 following which he contacted his solicitor. He confirmed that he saw a letter from the respondent dated the 28th January 2014 stating his job remained available for a further 14 days. He did not avail of the offer as it remained his position that he was unfairly dismissed on the 20th August 2013, that the respondent did not sanction AB and as a result felt he (the claimant) was not being treated fairly. He felt the respondent was simply overlooking what had happened and in the circumstances he could not return to work.
The Tribunal was given copies of further correspondence between the claimant and the respondent and their respective solicitors from 26th September 2013 and 29th January 2014.
The claimant gave evidence of loss.
Respondent’s Case:
EM gave evidence. She had responsibility as Area Manager for four of the respondent’s stores which had between seventy-five and one hundred staff. Two of the stores under her remit were the Long Mile Road and Palmerstown branches. She was also held the role of Personnel Leader and dealt with any HR issues in this area.
On the 20th August 2013 she received a call from AB who informed her that an incident had occurred in the shopfloor and the warehouse area of the Long Mile Road between himself and the claimant. AB also informed her he had suspended the claimant. She contacted the claimant within 24 hours to discuss the issue. The claimant submitted a grievance letter dated the 21st August 2013 and it was decided a meeting would be held to discuss the issue. EM proceeded to interview all staff employed in the store.
EM met the claimant on the 30th August 2013 to discuss the matter. She also met with AB and the Store Manager. Following her investigation EM wrote to the claimant on the 5th September 2013 regarding his suspension and the outcome of her investigation. EM found there was no sufficient grounds to warrant the claimant’s suspension and accordingly the suspension was lifted. The claimant was informed he could return to work on the 9th September 2013. The claimant did return to work on that date but left the premises within the hour.
On the 18th September 2013 EM wrote to the claimant regarding his grievance outcome. The seven points the claimant had raised were addressed, some points upheld and some rejected. In conclusion EM stated that she would discuss that the issue of “performance related discussions” between staff and where such discussions should be held, that she would address the unprofessional behaviour of AB and to facilitate the claimants return to work, she would organise a meeting with the Store Manager, AB, herself and the claimant to discuss the issues raised. The claimant was given the right to appeal the decision.
A grievance hearing was held on the 24th September 2013. At this meeting the claimant stated that he could not return to work with AB. In response EM offered the claimant a position in an alternative location – the Palmerstown store. EM later spoke to the claimant by telephone and a letter dated the 27th September 2013 was sent to him regarding the position in the Palmerstown store. He was also informed that he would be paid for the whole month of September to ensure he was not out of pocket while the grievance was being resolved.
EM explained that the position in the Palmerstown store was offered to the claimant as he was familiar with its location and staff as he had done relief work there in the past when the store was short staffed. It was also a similar distance to travel from the claimant’s home as the Long Mile Road. This store was also under her remit as Area Manager.
On the 11th October 2013 she again wrote to the claimant to follow up on his return to work date. In response to the claimants request for information about the sanctions taken against AB he was informed that, in accordance with company policy and data protection legislation, she could discuss the disciplinary record of any other employee with him.
EM wrote again on the 29th October, the 5th November and the 25th November 2013 regarding his return to work with no response from the claimant. In the 25th November 2013 letter she made reference to his lack of responses to previous letters and telephone messages. She advised him of the availability of the position in the Palmerstown store but advised this position could not be held open indefinitely. He was requested to confirm in writing if he intended to return to work by Friday the 6th December 2013. EM also stated that if she had not heard from in writing or by telephone by this date she could only assume he was not returning to work and his job would no longer be kept open.
The claimant replied on the 5th December 2013 but did not mention whether he would return to work or not. A letter dated the 12th December 2013 was submitted to the claimant in reply to the issues raised in his previous letter. He again was informed the respondent did not discuss disciplinary issues concerning other employees and reaffirmed the position available to him in the alternative store. There was no response. EM issued letters dated the 31st December 2013 and the 2nd January 2014 to firstly assume he had abandoned his employment and finally to confirm his contract of employment with the respondent had terminated.
On cross-examination EM stated that she understood that the claimant was suspended and not dismissed on the 20th August 2013 and conducted her investigation on that basis. When interviewing AB in relation to the incident she confirmed that she put all of the claimants issues as raised in his letter dated the 21st August to AB for comment. EM confirmed that the claimant had said he was not happy to return to work with AB and when queried whether it was fair to move the claimant rather than AB she responded that the move was in response to the claimant’s statement that he could no longer work with AB. She offered a meeting between herself, the claimant and AB to discuss the options but the claimant refused. He further refused to engage with her in relation to the proposed move therefore she never got the chance to discuss any alternatives. In the circumstances there was no consideration given to moving AB as opposed to the claimant.
Determination:
Having heard the evidence the Tribunal finds that this is a claim for constructive dismissal. The Tribunal is satisfied that the claimant was not dismissed by the respondent on the 20th August 2013 but was suspended. This is borne out by the fact that the claimant engaged with the grievance procedure post this date, participated in an investigation concerning the suspension and returned to work on the 9th September 2013, albeit for a short period of time. Furthermore, the claimants evidence given during the course of the hearing does not support the contention that a dismissal took place on the 20th August 2013.
Constructive dismissal is defined in Section 1 of the Unfair Dismissals Act 1977 under the heading “dismissal” in relation to an employee as meaning:
“(b) the termination by the employee of his contract of employment with his employer, whether
prior notice of the termination was or was not given to the employer, in circumstances in
which, because of the conduct of the employer, the employee was or would have been
entitled, or it was or would have been reasonable for the employee, to termination the
contract of employment without giving prior notice of the termination to the employer”.
In the circumstances the onus of proof rests on the claimant to show that he had no choice but to leave his employment. He must show the Tribunal that his failure to return to work was not voluntary and that the conduct of his employer was so unreasonable that he had no choice but take the course of action he did. Furthermore, it is incumbent on any employee to utilise and exhaust all internal remedies made available to him unless she can show that the said remedies are unfair. The Tribunal does not believe that the claimant discharged the burden of proof in this case.
It was accepted by the respondent, following an investigation, that the suspension dated the 20th August 2013 was not warranted. The investigation into both the suspension and the claimants grievance was conducted by the respondent quickly and efficiently and the claimant was given his opportunity to raise whatever issues he needed to. The claimant made it clear that he could not return to work with AB and as a result was offered an equivalent position in a nearby store in which he had previously carried out relief duties. The Tribunal accepts the claimants evidence that he felt penalised by this in particularly in circumstances where it was decided that the suspension given by AB was not warranted. However, he never engaged meaningfully with the respondent concerning the proposed transfer post 27th September 2014 when the offer was initially made to him. It appeared from the evidence given by the claimant that he wanted some sort of retribution against AB for his actions and was waiting for the respondent to communicate the sanction imposed on him to the claimant. It was made clear to the claimant by EM that she could not discuss another employee’s disciplinary record with him. The claimant was offered the opportunity to sit down to a conciliatory meeting with AB and EM but he refused and following the offer to move to the Palmerstown store did not communicate any further difficulties he may have had to EM. The respondent wrote to the claimant over a three month period seeking to facilitate his return to work but he failed to engage in the process. Eventually the respondent came to the conclusion that the claimant had abandoned his employment. The Tribunal believe that the respondent made reasonable efforts to continue the claimant’s employment on fair and reasonable terms.
In the circumstances the Tribunal is unanimous in finding that the claimant abandoned his position with the respondent and did not discharge the onus of proof placed upon him to establish a case for 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)