EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Rose Fitzsimons
- appellant
UD1353/2014
against the recommendation of the Rights Commissioner in the case of:
Tops in Pops Limited
- respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr W. Power
Mr M. O'Reilly
heard this appeal at Dublin on 1st April 2015
Representation:
_______________
Appellant(s) : Mr Padraig Ó Tomhnair, The Independent Workers Union, 61
North Strand Road, Dublin 3
Respondent(s) : Mr. Ryan Fitzgerald, Damien Sheridan Solicitors, Suite 209,
The Capel Building, St. Mary's Abbey, Dublin 7
This case came before the Tribunal by way of an appeal by the employee (appellant) against the determination of the Rights Commissioner (r-141964-ud-14/MMG) under the Unfair Dismissals Acts 1977 to 2007.
Summary of Case
The appellant’s claim is that she was constructively dismissed from her employment with the respondent. The Tribunal heard evidence that the appellant worked for the respondent’s shop business from 1999 until the termination of her employment in February 2014. She worked 26 hours per week and received €9.50 per hour. She told the Tribunal that she was very happy in her workplace for over 10 years and she had no issues with the owner of the business. However following the recruitment of the owner’s partner to the business in or around 2010 the appellant began to encounter difficulties in the workplace.
She told the Tribunal that she was gradually pushed aside and her managerial duties as a senior sales assistant were removed. She gave evidence that the owner’s partner took over her duties. She felt undermined and raised her grievances with the owner but nothing changed and her grievances were not addressed. Towards the end of her employment she became increasingly stressed. In December 2013 she received a settlement payment plus a payment in respect of outstanding holidays owed to her. She accepted this payment but still contends that she was a victim of bullying and harassment and believes that she was constructively dismissed from her employment. She believes that she was pushed out of her job and told the Tribunal that she understood the settlement payment was in respect of compensation arising from the bullying/harassment to which she had been subjected. Her employment eventually terminated on 26 February 2014 as she had no choice but to leave because of the manner in which she was being treated.
The owner of the respondent’s business gave evidence that he accepted that workplace difficulties existed between his partner and the appellant. He attempted to resolve these issues on a number of occasions and explained that they would have to try and get along and work together. He did not accept that his partner acted as a manager following her recruitment to the business as she was pre-packing vegetables.
He told the Tribunal that his business was coming under increasing pressure and he agreed a settlement payment with the appellant in December 2013. He did so in conjunction with the appellant’s trade union representative. This package was prepared and accepted by the appellant and he understood that this concluded the matter of the appellant’s employment. Her employment was subsequently terminated on 26 February 2014 and her position has not been replaced.
Determination
The Tribunal carefully considered the evidence of both parties.
Constructive dismissal is defined in section 1 of the Unfair Dismissals Act 1977 as:
“dismissal”, in relation to an employee means –
(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 terminate the contract of employment without giving prior notice of the termination to the employer”.
It is accepted by the Tribunal that the appellant was very upset by the matters that arose from 2010 onwards, however the burden of proof rests on her to show that she had no choice but to leave her position with the respondent. She must show the Tribunal that her resignation was not voluntary and that the conduct of her employer was so unreasonable that she had no choice but to resign. Furthermore, it is incumbent on any employee to utilise and exhaust all internal remedies made available to her unless she can show that the said remedies are unfair. Unfortunately, the Tribunal feels that the appellant did not discharge the burden of proof in this case. This is borne out by the fact that the appellant accepted a lump sum payment which she claims was for ‘bullying and harassment within the workplace’ and then remained in her job for a further two months. It must be said however that the respondent did not exactly facilitate a positive working environment for the appellant and certainly did not provide any formal procedure whereby she could air any genuine grievance. This however does not displace the burden of proof on the appellant in this case. Furthermore, the Tribunal does not believe that a genuine redundancy situation arose and was not materially addressed on this point.
In all of the circumstances the appeal under the Unfair Dismissals Acts 1977 to 2007 fails and the recommendation of the Rights Commissioner is upheld.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)