EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Deirdre D’Arcy
- claimant UD1052/2013
Against
Flamroad Limited T/A Born Kitchen
&
Flamroad Limited T/A Born Kitchen
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B L
Members: Mr T. Gill
Ms H. Murphy
heard this claim at Galway on 3 December 2014
Representation:
Claimant(s) : Ms Rebecca MacCana B.L. instructed by Mr. John Martin,
John F Martin & Company, Solicitors, 28 Woodquay, Galway
Respondent(s) : No appearance by or on behalf of the respondent
The determination of the Tribunal was as follows:-
Background
The Tribunal is satisfied that all parties were on notice of the hearing. The Tribunal secretariat spoke to the respondent’s representatives on the 27 November 2014 by telephone. The representative confirmed receipt of the notice of this hearing and confirmed sending a copy of the notice to the respondent. The notice of this hearing was also issued by registered post to the premises at Newtownsmith, Galway and successfully delivered on the 30 October 2014. On the 2 December 2014 the Tribunal secretariat received an email from the respondent’s representative stating that the respondent company was the subject of a high court order and a liquidator was appointed. The correspondence indicated that as a result of the situation they would not be attending this hearing.
The Tribunal noted that the respondent company had notified a change of its registered office address on the 16 April 2014 to the Companies Registration Office after the claimant filed her claim with the Employment Appeals Tribunal on the 22 July 2013. The new registered office address was added to the claim.
The Tribunal heard the uncontested evidence of the claimant. The witness commenced employment on the 1 November 2011. She had previously worked for a director (JC) of the respondent company in another business and was offered the position of restaurant manger. She had responsibility for the day to day running of the restaurant including menus, rostering and hiring staff. The restaurant traded within a clothes store also owned by the same directors of the respondent company. She often worked up to seventy hours per week during busy periods. The working relationship with the respondent was described as difficult.
On the 7 March 2013 JC in a loud and abusive tone informed the claimant that he was reducing her pay by €270 per week. He claimed he was not happy with her performance and that he had received complaints from customers that she was rude. He refused to identify who had complained. The claimant continued with her work that day although very distressed about what had occurred. She stated that she always had a good working relationship with all the staff and customers.
On the 13 March 2013 just before the lunch time rush JC arrived at the restaurant. In the presence of customers and staff he proceeded to shout about wage percentages not being acceptable and shouted that he would get a restaurant manger who could do the job as she 9the claimant) was unable. Again, the claimant returned to work serving customers and disguising her upset after the incident. She worked the following day and at the end of the day a member of the accounts department staff informed her that a new employee would start the next day in the role of restaurant manager. The claimant was informed that she would be responsible for training the new manager and that she would be accountable to the new manager. She attempted to contact JC but failed. On the 15 March the claimant attended her doctor due to the stress and lack of sleep as a result of what she had learned the previous day. She called to her place of work to hand in her medical certificate. She delivered a letter to FL in the accounts department for the attention of the employer. The letter dated the 15 March set out her grievances. The letter was read to JC over the telephone by FL who was told to ignore it. The employer failed to contact her and on the 20 March the claimant wrote to the employer again discharging her self from employment due to the unreasonable behaviour of the respondent.
The claimant received a letter from the respondent dated 11 April 2013 stating that the new employee was appointed to the role of senior operations manager and that her role as restaurant manager remained open to her. The respondent claimed in the letter that the new manger was appointed to oversee the rollout of cafes at all the clothes store locations. The claimant believes this did not happen and the employee who commenced on the 15 March was carrying out the role of restaurant manager.
Determination
The Tribunal carefully considered the evidence of the claimant in this case. The Tribunal consider the actions of the employer as unreasonable, particularly in reducing the claimant’s pay significantly without any prior consultation. The Tribunal heard that at no time was the claimant’s performance raised as an issue prior to the 7 March 2013. Furthermore, the claimant had no disciplinary issues on her record.
The Tribunal finds that the claimant had no other option under the circumstances but to terminate her employment. Without consultation the respondent had appointed another restaurant manger to take over her position. The claimant had no contract of employment and was never furnished with an employee hand book.
The Tribunal finds that the dismissal was unfair and awards the claimant €29,000.00 compensation under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)