EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1296/2014
RP718/2014
CLAIM(S) OF:
Pauline Walsh
Claimant
against
Monica Hackett
Respondent
Davisdorf T/A Hacketts Bookmakers
Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr E. Handley
Mr. F. Keoghan
heard this claim at Dublin on 7th March 2016 and 10th May 2016
Representation:
Claimant: Ms. Cathy Maguire BL instructed by: Ms. Ursula Geraghty, Doyle Geraghty & Co Solicitors, Pavillion House, 31/32 Fitzwilliam Square, Dublin 2
Respondent: Mr Tiernan Doherty, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
Claimant’s Case:
The claimant gave evidence. The claimant commenced employment in the respondent’s turf accountants located in Sandymount in July 2000. Some weeks later she relocated to their Dun Laoghaire premises and was promoted to Manager in 2001.
The claimant told the Tribunal that there were numerous issues with the premises in Dun Laoghaire. There were problems with the ceiling – it collapsed on one occasion, flooding had occurred and there was a general sense of disrepair. She spoke to the son of the owner of the respondent and Director (PH) about the issues. She also spoke to the owner (MH) who informed her the Dun Laoghaire premises would close at the end of August 2013 and she would relocate back to the Sandymount premises. The claimant agreed and having remained for an extra week after the closure of the Dun Laoghaire premises to empty its contents, she began working a three day week in Sandymount.
In mid-October 2013 a colleague left and the claimant took up working the extra hours. On the 27th of February 2014 a colleague (DS) contacted the claimant to inform her that MH had reduced her hours to two days a week and possibly the odd Sunday. A recently appointed member of staff (N) would work full time.
The following day the claimant contacted PH to discuss with him her reduction in hours. PH told her he did not know why this had happened and advised her to contact his mother – MH. The same morning she contacted MH and informed her that she could not work two days a week as it would not “pay her” to travel to Sandymount twice a week and MH had promised her three days a week when she relocated. MH replied that “you don’t think I would give you three days a week after the way you ran Dun Laoghaire.” The claimant told the Tribunal that she had never been criticised before for the work she carried out in Dun Laoghaire. The claimant told MH that she would go and take redundancy. MH replied she, the claimant, could leave but would not get any redundancy.
A few days later the Security Manager (BMcL), who ran the company on a day to day basis, contacted the claimant asking to meet her. They met on the 5th of March 2014. BMcL asked would she return to work. The claimant told him what MH had said to her, he asked would she meet MH and she agreed if he wished. The claimant and MH never met and the claimant never returned to work.
Sometime near the end of March 2014 the claimant contacted MH’s daughter (E) to request her P45. E said she would send it but, to date, i.e. the 7th of March 2016, the claimant has not received same.
The claimant gave detailed evidence of her efforts to mitigate her loss of earnings.
In cross examination the claimant stated that she had no written contract or terms and conditions of her employment. She explained that while working in the Dun Laoghaire premises she was in receipt of payslips but this practice ceased when she moved to Sandymount.
When put to her she refuted MH had told her she was not dismissed. When asked she said she had never worked less than three days a week before she left her employment.
On the second day of the hearing the question arose concerning the correct title of the respondent in this matter. The claimant explained that at first she had reported to BMcL but when she relocated to the Sandymount premises she reported to the owner, MH. The claimant produced documentation to the Tribunal stating she had been paid her wages from the respondent directly into her bank account under the name of the MH’s husband, who had since passed away. However the P60’s and payslips provided to the Tribunal stated the employer as the limited company name (D Ltd), which is cited as a respondent in this case.
DS, a former colleague of the claimant gave evidence. He stated he was employed by the respondent from January 2005 until June 2014 in the Sandymount premises. When this premises was sold to another employer he transferred to the new employer.
DS explained he and a colleague (POR) worked together in the Sandymount premises. Between them they covered the majority of the shifts required. In September they were informed the claimant was to move to their premises on a three day week. DS told the Tribunal that either BMcL or PH informed them. The claimant was not received “warmly” as either DS or POR would have to relocate and work in another of the respondent’s premises in order for the claimant to work her shifts in the Sandymount premises. Only two shifts per week needed to be covered. When the claimant commenced her shifts POR had to relocate one day a week.
In February 2013 DS spoke to MH when she came to visit the premises. MH informed DS the claimant would be working two days a week. MH also made comments about the claimant calling her an “eccentric weirdo”, saying she ran the Dun Laoghaire premises disgracefully and was “useless”. MH was not happy with the claimant it seemed. DS later contacted the claimant and informed her what MH said about her and the fact she would be working two days a week. The claimant was very upset.
In cross-examination DS said POR and told him in February that she was leaving to move to New Zealand the following Christmas. DS later told the Tribunal that he thought POR left the respondent earlier than this.
Respondent’s Case:
MH, the owner and Director of D Ltd gave evidence. She explained that she had been in the business for over 40 years with her husband who had passed away in 2015. She had handed over the business and was not involved in the day to day running of it, BMcL ran the Dublin premises and PH overseen the financial aspect of the business. In 2007 they had 67 premises but this had decreased to 19 by 2016.
MH explained the 35 year lease on the Dun Laoghaire premises was up and it was decided not to renew it. MH told the claimant in February but asked her to keep it to herself. MH told the claimant she would move to the Sandymount premises and could promise her 3 days a week plus the odd Sunday. The claimant was happy with this as it gave her time to look after her sister who was ill. The claimant moved in September 2013.
In February 2014 a new computer system was being introduced into the business. MH told the Tribunal that she personally visited all the Dublin premises to explain the new system to the staff. When she visited the Sandymount premises the claimant was not present, DS and a female member of staff she did not know was present. POR had already left the respondent’s employment by that time, MH said.
MH denied she had called the claimant any derogatory names, made comments about her to DS or told DS the claimant was working a two day week.
MH told the Tribunal that she had not spoken to the claimant from the previous June or July until she contacted her at her home on March 1st 2014. The claimant was very upset on the telephone saying MH had sacked her. MH replied that she had not sacked anyone in 15 years. The claimant then told her a customer had told her she was sacked. When the call ended MH contacted the respondent’s head office to inform them of the details of the claimant’s call. She had no further contact with the claimant but was aware BMcL had meet her some days after her telephone call.
In cross-examination MH told the Tribunal that the claimant had been in charge in the Dun Laoghaire branch. She said the claimant had been a very loyal employee and MH was “happy to keep her on” after the Dun Laoghaire premises closed.
MH denied she had told DS the claimant’s hours had been reduced. The claimant had never worked any less than 3 days before she left her employment.
When put to her she said she had not known there was any tension in the Sandymount premises because the claimant was moving to work there.
When asked MH could note explain and stated she could not understand why the claimant’s wage payments were in her late husband’s name and not in the employer’s name, D Ltd. She also could not understand why the claimant said she had not received any payslips as they were sent by email to all employees.
When put to her who had employed the claimant MH replied the limited company, D Ltd but she had initially interviewed her for her original position. MH told the Tribunal that she “had nothing to do with staff.”
When asked by the Tribunal if redundancy had been discussed with the claimant during the telephone call in March 2014 she replied that she could not say.
BMcL, the Security Manager who ran the business day to day, gave evidence. In early March 2014 MH contacted him explaining the conversation she had with the claimant. The claimant said she had been sacked and MH had made comments about her in the Sandymount premises.
BMcL told the Tribunal that the claimant had been an excellent employee and wanted to meet her to discuss the matter. He hoped she would change her mind and return to work.
A meeting was arranged and the two met in Dublin city centre. BMcL told the Tribunal that the claimant was happy to talk to him at the meeting but did not want to talk about work. BMcL said he did ask the claimant to come back to work and did not tell her her hours would be reduced to 2 days per week. The claimant did not return to work. He had no further contact with the claimant and left the respondent’s employment in 2014.
In cross-examination BMcL said he did not know the content of the allegations of what MH allegedly said about the claimant. When asked, he said he felt the claimant left because she had taken offence at something allegedly said about her and had been told she was sacked. He refuted he had told her she would only be working 2 days a week. The claimant had never worked less than 3 days a week while working in the Sandymount premises.
BMcL told the Tribunal that he asked the claimant would she meet MH but she said she would not. BMcL told the Tribunal that he felt he was “wasting his time” with the claimant, she had been ranting and was not calm during this meeting. He reported the contents of the meeting with the claimant to MH.
PH, the Office Manager and son of MH, gave evidence. The claimant had raised the issue of hearing from a customer that her hours would be reduced. PH told the claimant that he found that “hard to believe really” and told her to contact MH.
In cross examination PH said he had accompanied MH on her visit to the Sandymount premises in February 2014. He had not heard MH make any comments to DS about the claimant.
Determination:
The Tribunal notes that on the 27th of February 2014 a colleague (DS) contacted the claimant to inform her that MH had reduced the claimant’s working hours to two days per week and possibly the odd Sunday, and that a recently appointed member of staff (N) would work full time.
The following day the claimant contacted PH to discuss with him her reduction in hours. PH told her he did not know why this had happened and advised her to contact his mother – MH. The same morning she contacted MH and informed her that she could not work two days a week as it would not “pay her” to travel to Sandymount twice a week and MH had promised her three days a week when she relocated. MH replied that “you don’t think I would give you three days a week after the way you ran Dun Laoghaire.” The claimant told the Tribunal that she had never been criticised before for the work she carried out in Dun Laoghaire. The claimant told MH that she would go and take redundancy. MH replied she, the claimant, could leave but would not get any redundancy.
The Tribunal is satisfied that the claimant had a legitimate grievance, in respect of the reduction of her working hours, and that this was not dealt with adequately, or at all, by the respondent. There was no written terms and conditions of employment. There was no staff manual or grievance procedure. In these circumstances it behoves the respondent to put in place a process to enable the claimant deal with her grievance. A reasonable employer would be expected to do this.
There was no written, or any adequate, reassurance from the employer that the claimant’s working hours would not be reduced. The meeting which BMcL had with the claimant fell well below how the grievance should be addressed. If there was a problem with the way she ran the Dun Laoghaire premises previously then that should have been addressed, and not used as a justification for reducing the claimant’s working hours.
Having regard to all the evidence the Tribunal finds that the claimant was constructively dismissed, and deems compensation the most appropriate remedy. Accordingly the Tribunal awards the claimant €20,000 (twenty thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
The claim under the Redundancy Payments Acts, 1967 to 2007 was dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)