EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Sheree Young UD1009/2013
against
Giles McGee
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms F. Crawford B L
Members: Mr D. Morrison
Ms A. Moore
heard this claim at Letterkenny on18th July 2014, 11th November 2014 and 23rd September 2015.
Representation:
Claimant : Mr Cathal Quinn, Quinn Dillon & Co., Solicitors,
34 Lower Main Street, Letterkenny, Co. Donegal
Respondent : Mr Dessie Shiels, Solicitor, 16 Academy Street, Letterkenny, Donegal
Background:
The claimant was employed as a cook in the takeaway and restaurant from March 2008. The respondent (GMG) took over the failing business in February 2011 and kept the original staff on. Having closed the premises for cleaning and renovation it then re-opened. Business had declined under the previous owners and GMG slowly began to rebuild it.
The claimant was mainly employed in the takeaway section of the business. Her duties included cooking to order, dealing with customers, hygiene and dealing with cash. There had been no major issues with the claimant apart from having been issued with a written warning in 2011.
She commenced maternity leave in July 2012 and had met with GMG in December 2012 to discuss her return to work. GMG told the Tribunal that he did not think he had enough work for the claimant at the time. However, she returned in early January 2013 and was placed cooking in the restaurant/café section of the premises.
On the 31st January 2013 GMG asked the claimant to a meeting and having given her a 10 page document, highlighting a list of errors in her cooking, to read and sign. The claimant was dismissed that day.
Respondent’s case:
The owner gave evidence. He stated that he had problems with the claimant prior to her maternity leave regarding the food she had cooked. She had been given a written warning in February 2011 which remained valid for twelve months. She was given another warning before she commenced maternity leave and had informed the witness at that stage that she was handing in her notice. However, she did return after her maternity leave to work in the restaurant / café cooking food to order.
The witness explained that he was not always on the premises but the supervisor was. On the date the claimant was dismissed she was given a ten page document of various mistakes she had made while preparing food to order dated from the 14th January to the 31st January 2014. These errors had cost the respondent money to replace and recook the food originally ordered. Each error was read into the record for the Tribunal which including undercooked and overcooked food, wrong orders prepared and incorrectly heating mayonnaise in the microwave. The owner told the Tribunal that he was afraid his customers would get poisoned and added that she was trying to sabotage his business. He said her behaviour was “either gross incompetence or deliberately done” and had no alternative but to dismiss her.
The owner never directly accused the claimant of sabotage and could not be certain whether he allowed her the time to read that ten page catalogue. Prior to 14 January 2013 he had never documented her errors and commented that this was a massive mistake on his part. He neither furnished the claimant with a letter of dismissal nor offered her the right to appeal his decision to summarily dismiss her.
Claimant’s case:
The claimant commenced employment with the respondent in 2007 and worked in the takeaway section of this restaurant. Prior and subsequent to a change of ownership she had no issues with her work. Neither sanctions nor complaints were levied against her in the course of her employment up to November 2012 when she was issued with a written warning. The claimant disputed the background and circumstances of that warning insisting it was undeserved and unfair. That same month the claimant heard the respondent threaten her with dismissal. At that time she was on maternity leave having commenced it in July 2012 and she was due to resume work on 13 January 2013.
Upon her return to work the claimant was assigned cooking duties in the main restaurant. She was not consulted about this unilateral change to this more demanding job. The claimant felt hostility towards her from the respondent when she returned and described her treatment as emotional bullying by him. Her complaints about that treatment went unheeded. Without notice she was called to a meeting with the respondent and his accountant on 31 January 2013. There the claimant was presented with documents. Under pressure she signed for those documents without first reading them. They contained a list of allegations purporting to show several shortcomings in her work from 14 January 2013 up to the time of this meeting.
In denying any wrongdoing the claimant told the Tribunal that these incidents on the list either did not happen or were exaggerated. Besides, the respondent was not even present when these allegations occurred and they were never brought to the claimant’s attention at the time. She was not given an opportunity to read those allegations prior to being summarily dismissed. The claimant denied she attempted to sabotage the respondent’s business.
The claimant was not given any notice of the meeting of 31st January 2013 and was not offered the opportunity to be accompanied at this meeting nor was she afforded an opportunity to appeal the decision to summarily dismiss her. Furthermore she was not given an opportunity at the meeting to address the allegations against her and it was the claimant’s position that she signed the 12 page document under duress.
Determination:
The Claimant in this case returned from Maternity Leave in early January 2013. Within two weeks of her return to work, the Claimant was dismissed on the 31st January 2013 and now brings a claim pursuant to the Unfair Dismissals Act, 1977 as amended.
The Tribunal has heard evidence over three days of hearing with oral submissions given.
Having regard to all the circumstances, the Tribunal finds that the claimant was unfairly dismissed. The Tribunal also accepts that there was no fair procedures utilised in favour of the Claimant and a lack of any procedural and/or natural justice. The Claimant was brought to a meeting on 31st January 2013 without prior notification as to what that meeting was about.
Given this conclusion, the Claimant is entitled to redress under the Unfair Dismissal Acts. The option of reinstatement/ reengagement is deemed inappropriate given the length of time from the dismissal and the current relationship between the parties evident after the three days of hearings. Therefore, the Tribunal awards compensation to the Claimant. In assessing this amount, the Tribunal has regard to the duty on the Claimant to mitigate her loss and in all the circumstances, awards the sum of €16,850 under the Unfair Dismissals Act 1977 as amended.
The Claimant is also entitled to a sum of €864.00 under the Minimum Notice and Terms of Employment Acts 1973 as amended.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)