EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Angela Fleming UD1089/2014
against
Paragon Bar Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O’Mahony BL
Members: Mr. D. Hegarty
Mr. O. Wills
heard this case in Cork on 24 August 2015
Representation:
_______________
Claimant(s):
Mr. Eamon Murray, E.C. Murray & Co., Solicitors,
Ard Na Greine, Seskin, Bantry, Co. Cork
Respondent(s):
Mr. Liam O’Donovan, Liam O'Donovan & Co Solicitors,
Upper Bridge Street, Skibbereen, Co. Cork could not attend the hearing such that Mr. Mark Maguire appeared for the respondent
The determination of the Tribunal was as follows:-
Dismissal was in dispute in this case
Summary of Evidence
The claimant commenced employment as a part-time sales assistant in the respondent’s off-licence in Bantry in September 2008, initially working ten to twelve hours on three shifts per week. The claimant did not want to work more than 12 hours per week as it would affect her SW allowance. Closing time was 10.00pm. She did not have cigarette breaks and would smoke by the door and leave the cigarette there if a customer came to the shop.
The manager’s position was that from November 2011 to October 2013 the claimant had a number of long absences and spent more time out of work than at work. It was common case that from the time of her return to work in October 2013 she worked four hours per week but also did some overtime. The claimant found the manager to be moody and volatile and she left on one occasion when he was shouting but he subsequently went to her house and apologised.
In mid January 2014 the manager had a number of issues with the claimant’s performance: he had observed that she had closed the window shutters too early (at 9.45 p.m), that she was talking to a customer for 30 minutes while another customer was waiting to be served and that she had left a customer pack his own bag while she took a cigarette break. The claimant refuted the manager’s assertion that he spoke to her about these on 17 January 2014 and told her he would be issuing her with a letter of warning about these on 24 January.
On the evening of 24 January 2014 the claimant came to work at 5.30pm and took her €40 wages from under the till, as she usually did. The manager came and placed a letter of warning in front of her outlining his issues with her and asked her to sign it. When she refused to sign it he told her not to bother coming back to work unless she would sign it. She left the off-licence. About ten minutes later the manager sent her a text telling her to return or he would call the gardai in relation to the theft of €40. The claimant did not sign the warning because she did not agree with its contents.
The claimant’s position was that on her return to the shop the manager was shouting at her and verbally abusive. She took the letter of warning and refused to give it back to him. He grabbed her by the shoulders and was shouting into her face as he tried to grab the letter from her. She told him to take his hands off her and said that this was an assault. He was blocking her exit but she got around him and left. The manager called the gardai and when they came she went back into shop. The gardai told the manager that the issue of taking of wages by an employee was a civil matter. The gardai watched CCTV coverage of the incident. The claimant indicated that she wanted to press charges against the claimant for assault and later made a statement at the garda station.
The manager’s version of the incident was that on the claimant’s return to the shop in response to his text, she went into the back office, took the letter of warning and refused to give it to him, holding it up over her head and then behind her back as he tried to grab it. He denied grabbing
the claimant’s shoulders but conceded that he could have come into contact with her as he tried to grab the letter. He regretted having tried to grab the letter and desisted once she shouted “assault”.
A few days after the incident the claimant told the manager in a phone conversation that she could not continue in the employment and the manager agreed with this. All charges were dropped and it was agreed that the claimant would resign. The manager was adamant that he did not dismiss the claimant. The manager withheld the claimant’s P45 until she gave him a letter of resignation.
While the manager maintained that the CCTV footage had shown that the claimant had closed the shutters at 9.45 p.m. her position was that the shutter was only half-way down. She had left a customer to pack his bag because he had wanted to pack it himself. The manager maintained that a good customer, who spent around sixty euro per week in the shop, was not happy to have to pack his bag.
Determination:
The claimant and manager did not wish to continue working together. This common position emerged when the claimant phoned the manager to inform him that she could not continue in the employment. The termination of relationship was initiated by the claimant and it flowed from the incident of 24 January 2014. Despite the fact that the claimant’s behaviour on the evening of 24 January was not without reproach, the termination of the employment by her amounted to a constructive dismissal, it being reasonable for the claimant to terminate her employment because of the conduct of the manager that evening. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds.
The Tribunal considers compensation to be the appropriate form of redress in this case. The claimant did not demur from the reduction in her hours of work in October 2013. Any award of compensation has to reflect this. The Tribunal awards the claimant compensation in the amount of €3,500.00 under the Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)