UD210/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD210/2015

CLAIM(S) OF:                                                                     

Laura Gervelyte     

-          Claimant

Against

Zest Catering Limited T/A Zest Catering

-          Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms V. Gates B.L.

Members:     Mr D. Moore

                     Mr D. Thomas

heard this claim at Dublin on 23rd March 2016 and 31st May 2016

Representation:

_______________

Claimant(s) :                Mr Peter Leonard BL instructed by: Mr John Greene and Ms Grainne Cunningham PC Moore Solicitors, 39 Westland Row, Dublin 2

Respondent(s) :           Mr Michael Sheil, Michael Shiel & Partners, Solicitors, Temple Court, Temple Road, Blackrock, Co Dublin

The determination of the Tribunal was as follows:-

The Managing Director (MD) and founder of the respondent company gave evidence. The claimant commenced work in August 2013 on a three-month probationary period. She was on sick leave for five weeks so her probationary review was not held until December 2013. The MD offered her a fulltime position but verbally warned her about being argumentative and not following instruction from her superiors.

In her annual review meeting in January 2014 with MD and the Operations Manager (OM) the claimant was verbally warned about her interaction with the OM.

On her return from maternity leave in December 2014 the MD received an email from the claimant requesting a meeting at which she complained about how the OM was treating her. The claimant felt she was being criticised more than her colleagues by the OM. The MD wanted to reassure her that she was not being singled out. The MD held a meeting with the OM to discuss the claimant’s issues.

In cross-examination the MD accepted that on 2nd of February 2015 the claimant was requested to attend a meeting, the purpose of which was not articulated to her in advance. The claimant was offered the opportunity to bring a representative with her if she so wished. The MD and OM were present and informed the claimant that she was being dismissed due to issues with ‘her attitude, lack of communication, her interaction with authority and her lack of availability for work’. She was issued with a termination letter at the meeting. The MD also accepted that the Grievance and Disciplinary procedures, as outlined in the Contract of Employment, were not adhered to.

The Operations Manager gave evidence. At the interview it was explained to the claimant that normally the hours were until 3pm but every Tuesday they had a customer order until 7pm and this was rotated between the staff. After a couple of months the claimant commenced a course which meant she was unavailable for this. Throughout her employment he found her argumentative and unable to take instruction. Despite this he decided to retain her after the probationary period as he wanted to develop her. The claimant never complained to him that he was picking on her.

On an unknown date in August 2014 he entered the kitchen where the claimant was working. He asked her to sweep the kitchen but she refused and said she would do it later. He told her he was concerned in case a health inspector came and she said ‘why don’t you do it yourself’. He asked her to come to the office after her shift. There he highlighted her argumentative nature and refusal of instructions. He asked why she always argued and she said she always argued with her previous employer. He was flabbergasted at this. He told her she had to ‘mend her ways’, which she agreed to do. He did not make any note of this as he hoped for a positive outcome. However, the improvement only lasted a few days.

In October 2014 while they were having a disagreement in the kitchen she told him that all the ‘girls’ were looking for other jobs because of him. He asked to speak to her at the end of her shift. She admitted that she was also looking for another job. He pointed out the benefits of working for a small company. He told her that her position would have to be advertised. He told her how unhappy he was with her unwillingness to take instruction and constant arguing. At the end he told her that she was on a final warning. He believed that she was well aware of this though he did not document it.

One day he saw her on her mobile phone as she was in the van about to make deliveries. When she came back he addressed the staff and told them all that they were not to use their mobile phone while working. Ten minutes later he came back and found the claimant on her mobile phone. He had to ask her three times to get off her phone before she complied. This happened several times over the next few days. A few days later (8^th December 2014) he called into the kitchen. To gain access he had to call out to a staff member to open the screen door from inside and thereby his visit was announced. When he entered the kitchen the claimant was on her phone in the middle of the room in front of other employees. He asked her to please put the phone away. She ignored him and walked towards him holding the phone to his face and said ‘I want to record how you speak to me’. He felt intimidated by her and that she had contrived the situation. She was aggressive and confrontational.

He asked for a meeting at the end of the day. The ultimate decision to dismiss was the MD’s but he felt there was no way back for the claimant. He phoned the MD and briefed her on the situation. The claimant went to their other unit and emailed the MD seeking a meeting. He believed the claimant was trying to head him off at the pass as she realised the consequences of her actions. He contended that no meeting occurred on this day and that the next meeting was in February 2015 when the claimant was dismissed. This is at odds with the claimant’s evidence. At the February meeting the MD did most of the talking. The claimant merely said that she would have to see someone about it as she did not think they could dismiss her like that.

He did not believe it appropriate to dismiss the claimant before Christmas so he kept her on even though he knew there was no way back for her. He had no significant contact with the claimant prior to her dismissal. She mainly went to work at the other unit after 10am until she finished at 3pm.

Summary of Claimant’s Evidence:

The claimant is a Lithuanian national who came to Ireland in 2005. She contended that she received only one warning from the Operations Manager in August 2014 for talking back to him. She could not recall what the incident was about. She found him very difficult to work with. He made her feel very low and she felt like he treated her like a slave.

She had a different recollection of the events of 8^th December 2014. The Operations Manager came into the kitchen and asked for a van to be moved out of his car park space. He was in a bad mood. He noticed a dishcloth which the claimant had left on the cooker. He asked had she not learnt from the previous week when she had melted a container. He was staring at her while she worked. She emptied mayonnaise containers and left them by the sink for washing later, as normal. He told her to wash them. She explained that they always did the washing up when the others were doing deliveries. He asked did she always do what other people did. She took out her phone at this point to record how he was talking to her. He said he wanted to speak to her later in the office. The other girls were shocked and said she should email the MD which she did.

She returned to the office later and met the MD and Operations Manager. He was trying to defend himself and said he had not been shouting at her. She suggested talking to the other employees who had been present. MD said there was no point involving the others and that they would talk again after Christmas. She was not given any warning.

In February she was called to an annual review meeting. The MD said that it was not working out and that they were letting her go. She was asked to give in her keys. The claimant said she would need to speak to someone about it and left.

During cross-examination she agreed that she could be argumentative but not for no reason. The OM always picked on how she did things and not the other employees, even though they all followed the same procedure. The relationship had started out well but had deteriorated. She was given one verbal warning but denied receiving any others. They had a chat in the office on another occasion which the OM said they would keep between themselves. She considered this a frank exchange where they both raised issues they were not happy with. She was not happy with him shouting and screaming at her.

She denied ever refusing to sweep the floor. She might have said she would do it later as normally one employee would remain behind to clean while the others made deliveries. She agreed that they were told not to use their mobiles, but she did not use hers more than other employees. If someone phoned she would answer it. She did not believe she had done anything so major as to be dismissed.

Determination:

The Tribunal, having considered all of the evidence, is satisfied that the respondent did not adhere to fair procedures and that its own procedures were both inadequate and followed in an unsatisfactory manner. Accordingly, the Tribunal determines that the dismissal was unfair. However, the Tribunal is of the opinion that the claimant was aware that her attitude to management and to direction generally was causing difficulties to the extent that verbal warnings were issued to her seeking an improvement in workplace behaviour. The claimant failed to show any improvement despite the verbal warning and therefore contributed significantly to her own dismissal.

Taking all matters into account the Tribunal awards the claimant €2,000 (two thousand euro) under the Act.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)