EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1603/2013
CLAIM OF:
Vita Apina
- Claimant
against
MCT Catering Limited T/A Chocolat Restaurant
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. Hurley
Members: Mr. W. O'Carroll
Mr. F. Dorgan
heard this claim at Limerick on 17th September 2015 and 17th November 2015
Representation:
Claimant: Mr. Peter Clein BL instructed by: Ms Theresa O'Donoghue, Sweeney McGann, Solicitors, 67 O'Connell Street, Limerick
Respondent: Mr. Gerard Reidy, Wallace Reidy & Company, Solicitors, 24 Glentworth Street, Limerick
The determination of the Tribunal was as follows:
Background:
The Respondent is a restaurant. The Claimant worked as a waitress in the Respondent. The Claimant’s case is that she was constructively dismissed from her employment.
Claimant’s Case:
The Tribunal heard evidence from the Claimant. She worked as a waitress in the Respondent restaurant. There are three connected restaurants in this case and the restaurant that the Claimant worked in shall be known as the Respondent or restaurant C. The Claimant’s husband works in the Respondent as a chef. A Mr. T is the “boss” of the Respondent and of at least another of the restaurants (restaurant J).
The Claimant explained that she arrived into work at 4.00pm on the 20th April 2013. She commenced to take over a shift/ customers. The food orders had been taken by another waiting person and there were mistakes. One table had been served desserts but one customer had not received his dessert. The Claimant attempted to obtain the dessert from the kitchen. However the Head Chef (Mr. L) became angry towards her. She told Mr. L that the customer needed the dessert as the party wished to leave. Mr. L became abusive to her and called her very insulting names. Mr. L shouted at her to leave the kitchen.
The Claimant explained that she had worked with Mr. L in another of the restaurants and she had never had an argument with him.
The Claimant told the Tribunal Mr. L was shouting at her so she shouted at him to stop and not to be abusive to her. She felt humiliated because her husband, his friends and her colleagues were present. Then Mr. L pushed her. She left to go to the ladies bathroom and was crying. A colleague (L) called to the bathroom to see how she was. A few minutes later she returned to work, finished her shift and went home. She told the Tribunal that she felt humiliated.
She returned to work the next day and told everything to an Assistant Manager. The Assistant Manager told her that she should have told this to a Manager on duty the day before when it had happened. The Assistant Manager did not ask her if she wanted to make a complaint nor did he hand her any grievance procedure documents.
The Claimant explained that she felt humiliated because whenever she went to the kitchen Mr. L ignored her. The Claimant subsequently visited her doctor who prescribed her medication and she submitted a sick certificate to the Respondent.
She returned to work and spoke to another Assistant Manager (R) and he told her to write down what happened in a letter. She wrote a letter (letter page ten of documents opened to Tribunal). She had asked the Respondent twice to check the CCTV footage of the incident.
On the 24th April 2013 she wrote a letter concerning the issue to Mr. T and handed it to Ms. D. She asked Ms. D to sign for it and having spoken to Mr. C. Ms. D. refused but did accept the letter.
On the 26th April 2013 the Claimant spoke to the Financial Controller (Mr. C). Mr. C told her that Ms. D (the Manager of the restaurant) had explained the situation to him. He told her that the owner (Mr. T) was away in China. She was not asked to give a statement, nor was she asked to fill out a form, nor given grievance procedures.
On the 1st March 2013 the Claimant had a meeting in the office with Mr. C and Ms. D, but she was not allowed to have her friend, who she had brought along, to attend the meeting. From the outset she was asked to agree not to record the meeting however she did not reply to the request. She recorded the meeting on her phone because she was not allowed to bring her friend into the meeting. She was not given minutes of the meeting. She brought the recording of the meeting to her solicitor and notes of the recording were taped.
NB: The Tribunal told the parties that they would not read the notes of the recording and handed the booklets back to the parties on the first day of the hearing. The transcripts were submitted on the second day.
The Claimant continued her evidence as to what occurred at the meeting. When asked if Mr. L apologised to her she said he did but that he was “smirking”. She explained that Mr. C told her that there would be a meeting with Mr. S on his return.
The Claimant met with Mr C and Mr. T on the 21st May 2013. Mr. C said that Mr. L should not have put his hand on her. Mr. T told her that it was a personal matter between her and Mr. L. She was told that normally if someone was assaulted they should inform the Gardaí. She did ask them if they wanted her to inform the Gardaí. She did ask them about the CCTV footage. They told her that they did not want to involve all of the staff. She was told to go to the Gardaí and not to involve the company and that normal people go to the Gardaí. She was asked if she wished to work in the other restaurant but she told them that she did not want to because she liked working in the restaurant where she was.
On the 31st May 2013 the Claimant wrote a letter of resignation but did not date it as she did not know if she had to work her notice. Ms. D told her that she did not have to work her notice period. The claimant dated the letter the 2nd June 2013 and gave it to Ms. D.
The Claimant gave evidence of loss.
On cross examination she agreed she had not made a formal complaint to management on the day of the incident. She explained she had personal difficulties with Ms. D and did not normally converse with her.
The Claimant agreed a transfer to another restaurant in the Respondent’s group was offered to her but she said that she did not want to move location, she liked working there and did not feel she should be the one to move.
When asked she said Mr. L had apologised to her at the meeting with Mr. C and Ms. D but felt in was insincere and he was “smirking” when saying it. She felt he should have been disciplined for his actions.
She refuted Mr. C has asked to reconsider her decision the day after she had submitted her letter of resignation. He had spoken to her that day but she was busy and he had to go somewhere else. However, he had asked her was she sure she wanted to leave.
When put to her she said no member of management had informed her the investigation was ongoing when she tendered her resignation.
Respondent’s Case:
Mr. C gave evidence. He explained he was the Financial Controller of the respondent's group of companies. Mr. T is a major shareholder in the Respondent's family business.
In May 2012 the Claimant returned from maternity leave. She approached her Manager, Ms. D, and asked if she could get a letter from the Respondent stating they no longer had work for her and was making her redundant. Mr. C told the Tribunal that it could not be done as there was plenty of work for the Claimant. A mutual agreement was made between the Claimant and Ms. D of the hours the Claimant would work.
Mr. C told the Tribunal that he was not present on the 20th April 2013 and did not become aware of the incident until Ms. D informed him on the 25th April 2013 when she rang him concerning a letter the Claimant wanted her to sign. He read the letter and spoke to Ms. D and the waitress (L) about the incident the Claimant wrote about.
He met the Claimant who wished she, Ms. D, Mr. L and himself would meet and discuss the matter. Before this meeting he spoke to two Assistant Managers regarding the incident.
On the 1st May 2013 he, the Claimant, Ms. D and Md. L met. The issues were discussed and Mr. L apologised to the Claimant. Mr. C told the Tribunal that he said at the meeting that they were to work together and not be confrontational and he would continue to investigate the matter.
Mr. T returned from a visit to China on the 11th May 2013 and the witness informed him of the situation. They met with the Claimant on the 21st May 2013. At this time Mr. L had left the country on holidays and was not due to return until mid June. Mr. T asked the Claimant what she wanted done. The Claimant replied she wanted Mr. L punished. They told the Claimant that they would speak to staff, to Mr. L on his return and revert back to her.
The Claimant submitted her letter of resignation on the 31st May 2013 terminating her employment from 2nd June 2013. The following day he approached the Claimant, told her he received her letter and asked her if she wanted to take time out. The Claimant replied no and got very upset.
On cross examination he said he had given the Claimant the opportunity to change her mind about resigning. He said he had spoken to one of the Assistant Managers on duty on the day in question and had been told that there had been a dispute in the kitchen that night between the Claimant and Mr. L but no formal complaint had been made on that night.
When asked he said that he had viewed the CCTV footage 2/3 weeks after the incident and had not considered the placing on a hand by Mr. L on the Claimant was assault albeit that Mr. L should never have done it and he had told him so.
Mr. C explained that as Head Chef Mr. L was the boss in the kitchen and when he asked staff to do something they should do it. If there was a problem the staff member should take it up with the Manager.
When asked why he had not requested Mr. L to move premises he replied that this was not his decision to make. He told the Tribunal that he felt he had dealt with the matter correctly.
Mr. T, the Managing Director, gave evidence. He explained the Claimant was 1 of 80 staff employed by the respondent's group. He was abroad when the incident occurred and was only made aware of it on his return on the 11th May 2013 by Mr. C. He met with Mr. L before he, Mr. L was leaving to go abroad. Mr. L told him he had an argument with the Claimant in the kitchen.
On the 21st May 2013 he and Mr. C met the Claimant. He said that he told the Claimant that if she felt she had been assaulted by Mr. L she should report it to the Gardaí. The Claimant told him Mr. L should be punished. Mr. T told the Tribunal that he was concerned the incident had occurred and told the Claimant he had to investigate further, speak to Mr. L when he returned and would get back to her but the Claimant left her employment before he could.
On cross examination he told the Tribunal that it was not right that Mr. L had put his hand on the Claimant and had told him so. He said if he had completed the investigation and found Mr. L in the wrong he would have suspended him. Mr. T agreed it was his responsibility to protect the Claimant while she worked for him.
Ms. D gave evidence. She explained that she was the Manager of the restaurant the Claimant was employed. She was working on the day in question, it had been a very busy day. She was aware the Claimant had not long started her shift when the incident occurred in the kitchen between her and Mr. L. A waitress (L) had informed her of it and told her the Claimant needed a short break. She went to the kitchen to ask Mr. L what had happened but got no answer. The Claimant returned to work, finished her shift and left. The Claimant returned the following day and again worked her shift. No formal complaint was made regarding the incident.
On the 25th April 2013 the Claimant handed a letter to Ms. D and asked her to sign it. On advice from Mr. C she did not sign it but accepted it from the Claimant and gave it to Mr. C.
On the 31st May 2013 the Claimant handed her a letter of resignation and asked did she have to work her notice period. Ms. D told her she did not. Ms. D told the Tribunal that she did not ask the Claimant why she as leaving but assumed it was because of the situation.
On cross examination she said that she had not asked the Claimant what had happened on the day in question.
Mr. L gave evidence. He was at the time in question and remains the Head Chef in the restaurant the Claimant was employed.
He stated that on the day in question he had an argument with the Claimant but could not quite recall the words he had spoken to her. He had put his hand on her shoulder to tell her to go outside, he was busy. But he had not assaulted her. The Claimant’s husband had been present at the time and had not said anything.
When asked he again said that he could not recall the words he had spoken to the Claimant but his voice could have been loud, the kitchen was a very noisy area and voices were often raised. Rude words were often heard, he often said one himself. He told the Tribunal that he had apologised to the Claimant at the meeting with Ms. D and Mr. C.
On cross examination he said that he had continued to work with the Claimant’s husband after she terminated her employment.
Determination:
This matter came before the Tribunal by way of a claim for constructive dismissal.
Constructive dismissal is defined in Section 1 of the Unfair Dismissals Act 1977 under the heading “dismissal” in relation to an employee as meaning:
“(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 termination the contract of employment without giving prior notice of the termination to the employer”.
The burden, which is a significant one, is on the Claimant to satisfy the Tribunal that it was reasonable for her to terminate her own employment due to a significant breach by the respondent of the Claimant’s contract of employment or because of the nature and extent of the respondent’s conduct and the circumstances in which the Claimant was expected to work gave her no alternative but to leave.
Having considered the totality of the sworn evidence heard and the submissions submitted by both parties, the Tribunal concludes that the Claimant has failed to meet the burden of proof and to establish that she was constructively dismissed.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)