UD220/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                                           CASE NO.

Mark Groves                                                                                                                              UD220/2015

-        Claimant

against

P & C Smyth T/A Supervalu

-        Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms C. Egan B L

Members:     Mr P. Pierson

                     Ms H. Murphy

heard this claim at Longford on 2^nd July 2015

                                           and 8^th October 2015

Representation:

Claimant(s) :       Mark Connellan, Connellan Solicitors, 3 Church Street, Longford

Respondent(s) :   Eugene O’Connor, Rolleston Solicitors, Main Street, Portlaoise, Co. Laois

Background:

The respondent is a supermarket owned by two Directors - (PS and CS) and run as a franchise of a national supermarket (S). The claimant was employed as a Store Assistant from November 2012 until he terminated his employment by letter dated the 18^th February 2015. He was paid of a weekly gross wage of €370.50.

This is a case of constructive dismissal.

Claimant’s Case:

The claimant gave evidence. He told the Tribunal of the racist comments he had been subjected to while employed with the respondent regarding his Welsh heritage. He reported this to management – (PS).

On Sunday 23 March 2014 the claimant was working in the supermarket. A customer informed him that some of the vegetables on sale were out of date. During a quiet time he inspected all the fruit and vegetables for sale that day. He found some out of date products and replaced them from the stores.

The following day, March 24 the claimant arrived at work for his 8.00am shift. He stated that a colleague (LC) approached him and asked him in an abusive tone what he, the claimant, had been doing in his section. The heated argument ensued. The claimant told (LC) that it was unprofessional to have this disagreement on the shop floor in front of staff and customers. The heated conversation moved upstairs. They both then returned to the shop floor where (LC) allegedly pushed the claimant in front of staff and customers. The claimant then left the store. It was approximately 8.15am.

At 9.30am the claimant telephoned the Assistant Manager (EL) to inform her of what had occurred. The claimant told the Tribunal that she told him “he probably deserved it”. At 10.00am he reported the assault to the local Garda. The claimant’s partner contacted the franchise Area Manager (S) to report the incident. The claimant then contacted the owner, (PS). The claimant agreed to meet (PS) later that day where he attempted to hand in his notice. (PS) would not accept it, but told him to go home and take some time off.

On Friday the 28 March 2014 the claimant attended the respondent’s premises to collect his wages. He spoke to (PS) and asked him to tell his colleagues that he had not been suspended. The claimant stated that he had been told prior to this that this was what was being said about his absence from work. (PS) told him to return to work but to keep out of (LC’s) way. The claimant informed (PS) that he would be absent on sick leave for the following week. He attended his doctor who certified him unfit for work due to work related stress and submitted medical certificates to the respondent. The claimant explained the symptoms he suffered during this time and the medication prescribed.

On 2 April 2014 the claimant wrote to (PS) requesting a copy of the CCTV footage from the day in question and a copy of the company’s grievance and bullying policy. He received two responses requesting that he meet with (PS). He declined. On 16 April 2014 he wrote to (PS) explaining that he was too ill to enter the store to meet him. He again requested a copy of the CCTV footage and asked that it be sent to his home along with copies of company procedures.

(CS) replied on the 24 April 2014 informing him the CCTV footage was no longer available as it had been automatically wiped off the system. She suggested he contact Garda R who had attended the premises following his complaint on the day in question. Garda R had viewed the footage. A suggestion was also made that the claimant meet with (PS) to discuss the matter at an alternative venue to the store.

The claimant explained to the Tribunal that over that summer he suffered from depression and remained on prescribed medication. By September he stated that he began to improve.

On 3 September 2014 the claimant wrote to (PS) requesting copies of all documentation regarding his, (PS), investigation into the matter of 24 March 2014. The following day he wrote to the Area Manager of (S). He again wrote to (PS) on 3 October 2014. (CS) replied on 9 October 2014 requesting a meeting with him and again informing him that the information he had requested was no longer available. (CS) also stated that they wished to discuss an incident that had occurred on the 23 March 2014 involving the claimant and a female colleague.

A meeting was held on the 14 October 2014. The claimant, his partner and (PS) attended. At this meeting the claimant was informed it had come to (PS’s) attention that the claimant had made racist remarks to a female colleague. The claimant stated that this was the first time he had heard of this alleged incident. He again asked (PS) for a copy of his investigation notes. (PS) replied that he “hadn’t done it, won’t be doing it and he wouldn’t be getting it.” The claimant told (PS) that “if that was the way it was he would see him in court”. Then he and his partner left.

On 23 January 2015 the claimant again wrote to (PS) seeking documentation but he did not receive a reply. On 18 February 2015 he submitted his letter of resignation.

The claimant gave evidence of his loss of earnings.

On cross-examination the claimant told the Tribunal that he had been subjected to abusive racist comments (“Welsh c**t”) made to him by (LC) on three occasions. He told the Tribunal that he did not know why he had not mentioned this in any of his letters to the respondent or the Area Manager of (S). He agreed he and (LC) had had a very heated argument on the day in question. When put to him, the claimant refuted the allegation that he had thrown stock on the shop floor on 24 March 2014.

The claimant’s partner of twenty years gave evidence of the claimant’s demeanour and health before and after 24 March 2014 and how he had recovered somewhat from September / October 2014 having attended his doctor and taken the prescribed medication.

Respondent’s Case:

(PS) gave evidence that on 24 March 2014 he received a call from his Assistant Manager (EL) informing her of the incident that had occurred on the premises between the claimant and (LC). The Area Manager of (S) also contacted him concerning the telephone call he had received. On his arrival to the store he then received a call from the local Garda wishing to call to the premises to discuss a complaint the claimant made regarding an alleged assault.

Later that day he and Garda R viewed the CCTV footage. Although there was no audio on the video (LC) and the claimant could clearly be viewed arguing but there was no physical assault. (PS) then questioned the staff who had been present. He met the claimant later that day and discussed the matter. He advised the claimant to go home and take some time off. He suggested that he attend his doctor and he, (PS), would cover the costs.

(PS) and the claimant again met on the following Friday. The claimant informed him that he was suffering from stress and would remain absent from work. (PS) told the Tribunal that the claimant never mentioned that he had endured racist comments against him. (PS) spoke to (LC) on the following Monday who informed him that the claimant had thrown company stock on the floor before he walked out on the day in question and that there had been no reasoning with the claimant.

(PS) then received a number of letters from the claimant. (PS) told the Tribunal that he had made no notes when he had investigated the matter between (LC) and the claimant.

On cross examination (PS) said that he had told the claimant that he was still employed with the respondent and had wanted the claimant to return to work. He said that the claimant had never told him of the alleged abusive comments made by (LC) to him until the first day of this hearing. If he had previous knowledge he would have taken the matter very seriously and dealt with it. He said that he thought the company’s grievance and disciplinary procedures were included in the claimant’s contract of employment.

Garda R who investigated the claimant’s complaint of alleged physical assault against him gave evidence. He attended the respondent’s premises and viewed the CCTV footage to ascertain if there had been an assault on the day in question. Having viewed the footage he found no evidence of any physical assault. However, he had viewed what seemed a very heated argument between (LC) and the claimant. There was no audio on the footage to hear what had been said between them. He agreed that he had said to the claimant that he could go to a solicitor and request a copy of the CCTV footage.

(LC), manager of the store gave evidence that he reported for work on 24 March 2014. He told the Tribunal that duties from the previous day, filling of fridges and shelves had not been completed. He stated that he asked the claimant why this work had not been completed and the claimant replied “it’s none of your f….ing business”. He replied to the claimant that as manager of the store that it was his business and he would have to report the matter to the owner of the store. The witness gave evidence that the exchange continued upstairs. He accepted that it was a heated exchange and he shouted at the claimant. He did so in order to be heard as the claimant was shouting at him and was verbally abusive towards him. He (the witness) strenuously denied that he had called the claimant a “ Welsh c..t”.

He gave further evidence that the claimant returned downstairs, picked up some bread, walked to the door, threw the bread on the shop floor and then left the store. He told the Tribunal that he never touched, assaulted, or verbally abused the claimant.

He told the Tribunal that on 6 September 2015 he was socialising with his wife. He was approached by the claimant who verbally abused him. He made no response to the claimant. In that regard an apology was offered to the witness by the claimant’s legal representative during the course of the witness’s evidence to the Tribunal.

(A), a shop assistant gave evidence that she was working in the store on 24 March 2014. She witnessed the incident between (LC) and the claimant. She described it as a heated exchange. She told the Tribunal that the claimant was cursing at (LC) and said “you cannot tell me what to do”.

She gave further evidence that she was preparing to drive home from work on 9 July 2015 at 7pm. She told the Tribunal that the claimant approached her car, knocked on the window and banged on her car door. He was shouting at her but she could not understand what he was saying. She closed her car window and locked the car door. She was afraid of the claimant and she telephoned her work colleagues who came to her assistance. The claimant then left the scene and she subsequently reported the incident to the Gardai and made a statement.

Determination

In a claim alleging constructive dismissal there is an onus on the employee to prove that his dismissal was unfair. There is an obligation on an employee to try and resolve whatever the problem is before walking out of the job.

The Tribunal does not accept the claimant’s version of the events of the 24 March 2014 when a heated argument arose on the shop floor between the claimant and another employee, resulting in the claimant walking out.

Based on Garda evidence and witnesses’ evidence, the Tribunal is satisfied that no physical assault on the claimant occurred on the 24 March 2014. Later, on the same day, when the claimant attempted to hand in his notice, the employer (PS) would not accept it and advised the claimant to “go home and take some time off”. On the 28 March 2014, when the claimant called to the shop to collect his wages, (PS) advised him to return to work. The claimant informed him that he would be absent on sick leave for the following week

In April 2014, the claimant failed to respond to further overtures by (PS) in his effort to resolve the claimant’s grievance.

The Tribunal is satisfied that at all times the actions of the employer (PS) were reasonable.

The Tribunal in reaching its determination must apply the “reasonableness test” and ask: “was it reasonable of the employee in this case to act in this way?” The claimant was afforded every opportunity to return to work, an opportunity he refused to avail of. The Tribunal is satisfied that the claimants’ behaviour in failing to engage in any satisfactory manner with his employer was unreasonable.

Having carefully considered all the evidence in this case, it is the unanimous decision of the Tribunal that the test for constructive dismissal has not been met.

Therefore, the claim fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)