UD680/2015

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                  CASE NO.

Lesley May                 -claimant

                                                                                                       UD680/2015

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 645/2015. The claim under the Unfair Dismissals Acts, 1977 to 2007, was one of constructive dismissal, accordingly it fell to the claimant to make her case.

The claimant was employed from August 2013 to November 2014 with the respondent. The claimant was employed in the position of pharmacy technician and worked 24 hours per week in the latter stages of the employment. It was the claimant’s case that she did not receive a contract of employment, nor disciplinary or grievance procedures nor was she told the procedures to follow if she had a problem or issue. It was the respondent’s case that all of this was being put in place at the time the claimant resigned.

The claimant outlined in her evidence that it is a legal requirement for the pharmacist to be present when drugs are being dispensed. From the time she commenced employment the respondent arrived late almost every day. There were other times when he left during the day. At one point he reprimanded her for saying good morning to him when he entered the pharmacy as it let customers know he had only arrived.  

On occasions when the respondent was not present the claimant telephoned him for approval to dispense over the telephone. It was the claimant’s evidence that “nine out of ten days” she would dispense prescriptions without the respondent being present. The claimant knew this was illegal and she sought advice on the matter. The claimant was advised that the responsibility lay with the respondent.

It was the respondent’s evidence that usually he would make a check on all prescriptions and he was present 95% of the time. However, there were times when he was not present. The claimant would have known to at least telephone him for his approval to dispense the drugs. This is standard practice in 99% of the pharmacies. The respondent would have checked what drug was being dispensed and to whom. If it was a patient who was getting the medication on a monthly basis the respondent would be content for the claimant to dispense it as the patient would know the medication. There were times when he had concerns and he would tell his employee not to dispense drugs until he was there.

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 both the claimant and her colleague agreed to open the pharmacy.

It was the claimant’s evidence that she did not raise any issue about the practice with the respondent as he would well have known it was both wrong and illegal. She did not feel that she could raise the matter with him as she was both nervous to say it to him and feared the bad mood it would put him in. There were times she felt intimidated by him and other times when he was very nice. Not knowing how the respondent was going to be made it more difficult for the claimant.

It was the respondent’s evidence that the fundamental issue with the claimant was that she was an incompetent employee. There were multiple repeated errors in her work which caused friction between them. On one occasion he remembered saying to her that there were too many errors being made.

The claimant recalled one day when the respondent told her he needed to address how she spoke to customers but did not elaborate further on the matter with her.

It was the claimant’s evidence that a few weeks later the respondent reprimanded her in front of a customer and the customer admonished the respondent for doing so. When the customer left the claimant described that there was an “onslaught” from the respondent about her attitude and he accused her of talking to customers about him, which the claimant had never done. The respondent raised his voice and shouted and the claimant became upset and told him that she would never speak to customers inappropriately. The rest of that week the claimant was very nervous at work. It was the respondent’s evidence that he did not recall this incident with the customer nor the claimant becoming upset and he had never shouted at an employee.

Two weeks later the claimant attended her doctor who advised her to resign. At first the claimant did not intend to do so but then she received contact from her colleague who told her that the control drug register was removed by the Pharmaceutical Society of Ireland during an inspection. It was the claimant’s evidence that the control drug register did not tally. It was the claimant’s evidence that she knew she could not return to the employment given how the respondent would react to the inspection and the control drug register being removed. The respondent stated in his evidence that the vast majority of controlled drugs on the register were in order. The ones that were not were caused by receiving incorrect prescriptions.

The same day as the inspection the claimant sent the respondent a text message stating that on her doctor’s advice she could not return to work as she was no longer happy at work. It was the respondent’s evidence that there was nothing in the text message to indicate that the claimant was resigning on doctor’s advice. During cross-examination the contents of the text message were put to the respondent. When he received the text message from the claimant he did not ask her why she was unhappy as her work had deteriorated in the weeks leading up to her resignation.

It was the claimant’s evidence that she had no one else to speak with about the situation as the respondent was the owner of the business. The claimant queried with her colleague if she was having the same difficulties and she confirmed she was.

It was the respondent’s evidence that the claimant never once indicated to him that she had an issue with him, his conduct, the policies or procedures of the pharmacy or how the business was operated. There was no reason why the claimant could not raise an issue with him as they had a great relationship most of the time. During cross examination he did not accept that the claimant could not have approached him and he refuted that he was intimidating. In the weeks before the claimant resigned they had discussed needing to have a meeting for him to give her a contract of employment and dignity at work policy. He had no knowledge that the claimant had any issue with him.

The claimant gave evidence of the effects of the work situation, her financial loss and her efforts to mitigate that loss. The respondent contacted her a week or two after she resigned to say that he regretted matters did not work out. It was the respondent’s evidence that because of the claimant’s incompetency he felt she could be replaced. So when she resigned he did not question it further.

Determination:

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

Regrettably, the Tribunal did not find the respondent to be a credible witness and, further, had no evidence to support the attack made on the professional capabilities of the claimant. It was simply inconceivable to the Tribunal that the respondent would have placed the level of responsibility which he did on the claimant if he considered her to be incompetent.

The claimant’s evidence of the circumstances in which she was obliged to work was supported by a co-worker. To involve an employee in completely improper practices around drug dispensing is, of itself, unacceptable and would, in the case of the claimant have seriously compromised her. No employee should be expected to work in such circumstances. The Tribunal accepts the claimant’s evidence referable to the manner in which the respondent conducted himself and of the atmosphere that prevailed in the pharmacy.

The Tribunal found the claimant to be a truthful and sympathetic individual who displayed genuine concern for the respondent. The Tribunal considers that she had done her best in difficult circumstances and had persevered in the workplace longer than others might have. The Tribunal considers that it was entirely reasonable of her to ultimately terminate her own employment in circumstances where the prevailing practices and atmosphere in her workplace were undermining her health and wellbeing.

The Tribunal holds that the claim succeeds and awards the claimant the sum of €8000 (Eight Thousand Euro) by way of compensation under the Acts.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)