UD645/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                  CASE NO.

Triona Groves             -claimant

                                                                                                          UD645/2015

against

Michael McCormack T/A Leighlinbridge Pharmacy                       -respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. N. Russell

Members:     Mr. J. Hennessy

Mr. F. Dorgan

heard this claim at Carlow on 2nd December 2015

Representation:

Claimant:        Mr. William Maher B.L. instructed by Malcomson Law Solicitors,

Court Place, Carlow

Respondent:    Mr Patrick F. Lunny, 227 The Waterside, Charlotte Quay, Dublin 4

Summary of evidence:

This claim was heard with UD 680/2015. The claim under the UnfairDismissals Acts, 1977 to 2007, was one of constructive dismissal, accordingly it fell to the claimant to make her case.

The claimant was employed by the respondent as an over the counter (OTC) assistant and worked 30 hours per week. She was employed for eight years and she thoroughly enjoyed the employment for a number of years. However, over time the employment relationship deteriorated. It was the claimant’s case that she was not provided with a contract of employment, disciplinary procedure or employee handbook. It was the respondent’s case that a contract of employment was provided. The claimant stated that the first time she saw the contract of employment was at a Rights Commissioner’s hearing but she accepted her signature was on the document although she did not recall receiving the document.

Despite not holding a pharmacy qualification the claimant dispensed prescribed drugs on a daily basis without being supervised at all times by the respondent. It was the claimant’s evidence that most days she opened the pharmacy at 8.30am and would often be on her own at the premises until close to midday. At other times the respondent would leave for what he said would be a few minutes but often could be up to an hour.

It was common case between the parties that there was one day in particular when the claimant and her colleague worked alone in the pharmacy the whole day. The previous evening the locum pharmacist had cancelled for the following day and the respondent told the claimant it was up to her whether she opened the pharmacy or not. Both she and her colleague agreed to open the pharmacy. The claimant recalled in her evidence dispensing a controlled drug that day for a terminally ill customer. It was the claimant’s evidence that it was a source of concern to her during her employment that the respondent’s register for controlled drugs did not tally.

The claimant stated that during her employer she never discussed the fact that she dispensed prescribed drugs unsupervised with the respondent nor did she ever refuse to dispense them. Had she refused to dispense them she did not know what would happen to her employment. At times the respondent could be intimidating and make insulting comments to her and there were other times when he was very good to her particularly when her family suffered a sudden bereavement.

The claimant recalled receiving a verbal warning at one stage in the past about how she had spoken with a customer but she did not receive written confirmation of that warning. She was often accused by the respondent of “talking to customers” but she did not know what he meant by that comment. She did not discuss the respondent with customers.

In September 2014 the respondent reprimanded her for how she spoke to him in front of customers but she was at a loss as to what he meant. It was the claimant’s evidence that the respondent told her he was having contracts of employment drawn up, that she was on her second verbal warning and that her job was on the line. It was the respondent’s evidence that he provided the warning to the claimant in September 2014 as he felt the claimant was inappropriate with some customers, making fun and being “lewd” with them. He told the claimant that such comments/behaviour had to stop. He could not recall issuing an earlier warning to the claimant. During cross-examination the respondent stated that the lewd comments made by the claimant were directed towards him and had occurred on more than one occasion. This was denied by the claimant. While the respondent viewed the comments as a serious matter the claimant was a long-standing employee and many of the local customers she treated as friends. The respondent held a dim view of the comments but he was also appreciative of the fact that she had helped him build up the business over a long period of time. The claimant was the best employee he ever had.

The warning from September 2014 and other issues were on the claimant’s mind and in November 2014 she asked to speak with the respondent about the verbal warning issued and about the proposed contract of employment. The respondent recalled in his evidence that at that time they were under a lot of pressure as another employee had resigned. The same week the claimant approached him the pharmacy was inspected by the Pharmaceutical Society of Ireland and there were issues to tidy up as a result of that inspection. It was common case that the claimant said she was thinking about leaving the employment but that she did not want to leave him without any staff. He reassured her that she was a valuable employee. He recalled her referencing the fact that she did not appreciate how he had spoken to her in September 2014. He assured that he would employ more staff and thought she was content with that. The claimant did not raise any other issues with him which she could have done.

The respondent thought they were both content to move forward after that discussion. The claimant did not raise the fact that the pharmacy was understaffed with him. In the intervening period from November 2014 he had tried to employ staff but there were no suitable candidates at that time.

It was the claimant’s evidence that the respondent told her they would discuss matters further in the new year but this did not occur. The respondent continued to “flit” in and out of the pharmacy. The pharmacy became busier and the claimant found it more difficult to cope. She resigned one day in April 2015 following a verbal exchange with the respondent. The claimant described that incident as “the last straw” and in hindsight realised she should have resigned sooner. The claimant gave evidence of loss and efforts to mitigate that loss.

It was the respondent’s evidence that the day the claimant resigned he believed she was upset about a family matter. He intended to telephone her but then the keys were returned to him and he received a letter from the Department of Social Protection.

Determination:

The Tribunal is satisfied that the respondent is correctly named in these proceedings.

The respondent’s evidence to the Tribunal lacked creditability and there were clear inconsistencies in the statements made by him. He appeared to have no real appreciation of what his employee had experienced in the workplace nor the extent to which he had regularly placed her in a very difficult and vulnerable position.

This employee was expected to fulfil duties that went far beyond her role in the pharmacy as an over the counter assistant and, specifically, was called on to be complicit in the dispensing of drugs in circumstances that were completely inappropriate. The Tribunal accepts the claimant’s evidence of the manner in which the respondent conducted himself generally in circumstances where he appears to have had no real appreciation of the effect of his actions.

The fact of the matter, as far as the Tribunal is concerned, is that the claimant was expected to work in circumstances where her self-respect and confidence were being undermined by the actions of the respondent. The respondent could have been in no doubt about his own actions and any reasonable employer would have determined that changes were necessary. The apparent lack of appreciation of the effect of his actions is a shortcoming that the respondent must address.

No doubt, the respondent is a decent person who simply needs to stand back, see the changes that need to be made and implement these. By all accounts he has a good business and the loyalty of his customers and, perhaps now, having heard from the claimant in an open forum he will achieve the insight that still appears to be absent.

The Tribunal is satisfied that it was reasonable for the claimant to terminate her own employment given the circumstances and atmosphere in which she was expected to work.

The Tribunal holds that the claim succeeds and awards the sum of €25,000 (Twenty Five Thousand Euro) by way of compensation under the Acts.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)