EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Geraldine May – claimant UD192/2015
MN101/2015
Against
Maxlo Distilleries Limited T/A The Horse & Hound – respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. Levey B.L.
Members: Mr T. O'Grady
Mr F. Barry
heard this claim at Dublin on 25th February 2016
Representation:
_______________
Claimant(s): Mr Darren Murphy
Neville Murphy & Co.
Solicitors, 9 Prince Of Wales Terrace, Bray, Co. Wicklow
Respondent(s): Ms Jenny O'Beirne
Cullen & O'Beirne, Solicitors
338b The Capel Building, Mary's Abbey, Dublin 7
The determination of the Tribunal was as follows:-
Background:
Dismissal was in dispute in this case. On 29th August 2014 the claimant had an argument with a colleague. At a meeting which followed on 5th September 2014 the claimant contended that she was dismissed. This is disputed by the respondent company.
Summary of Claimant’s Case:
The claimant commenced her part-time employment as a barperson with the respondent company in July 2011. She claimed jobseekers allowance for the other days of the week. She occasionally took time off to bring her father to hospital appointments and her employers, a husband and wife team (SM and CM), were accommodating in this regard. In January 2014 she suffered a heart attack, but she resumed work shortly afterwards as she needed the money. She had a relapse and took further time off. Her employers ensured that she did not have to do any heavy lifting of barrels or ice buckets.
On Friday 29th August 2014 she had a disagreement with a colleague. She had been working alone on the 12pm to 6pm shift. While she was having a drink at the bar afterwards the barman who relieved her at 6pm questioned her about the number of sandwiches sold and the absence of any money in the box for sandwich takings. She said she had only sold two sandwiches. She felt that she was being accused of stealing. She left the premises.
She was due to work the following Sunday but she sent a text message to the supervisor that day to say she would not be going in. She was extremely upset and stressed, had chest pains, and was in bed.
The owners were on holiday at this time and due back later in the week. She sent a text message to SM as she wanted a meeting. A meeting was arranged for Friday 5th September 2014 with CM. They discussed the accusation of stealing first. The claimant wanted CM to view the CCTV footage of the Friday in question, but CM refused as it would take too long. She asked if there were any shifts for her and CM said ‘no’. CM said the claimant should take time out, but the claimant needed to work in order to meet her bills and rent. She asked if she was being sacked and CM said ‘yes’. She left and a week later received her P45. She described the meeting as taking 30/40 minutes. There was no further communication. She denied receiving any written warnings during her employment.
The claimant was cross-examined. The incident with the other barman (DH) had occurred at 8.30pm. She had stayed behind to drink with customers after her shift had ended at six. DH asked where the sandwich money was and she told him she had only sold two. She had given two sandwiches to two friends, but had forgotten to put the money in the sandwich box. He kept asking her ‘where’s the money?’ She asked him if he was accusing her. The discussion moved into the hall and from there into the function room with DH repeatedly asking about the whereabouts of the money. The claimant got angry and broke two or three glasses. She then got her bag and left. She gave the money for the sandwiches to CM at the meeting the following week. On Sunday she told the Supervisor that she did not want to come in as she had ‘been accused of robbing’. She did not attend work during the week as the Supervisor told her not to.
The respondent put a list of warnings to the claimant. Most of these related to conversations with the claimant and were not documented. She denied receiving a written warning; though the document purported to be a warning is untitled. It informed the claimant that everyone’s roster was being changed due to financial losses and stipulated that in future there was to be no shift swapping and ‘no subs, no more staff tick and no more drinking at the end of a shift on the premises.’ She agreed that she wrote a note dated 14th October 2011 wherein she apologised for ‘letting you both down last weekend.’ The respondent contended that the claimant had gone to Galway for the weekend and did not appear for work. The claimant could not recall what the apology was for.
She agreed that she had left her car outside the pub for two days when staff had been asked not to park there to allow window repairs to be carried out. She denied having been verbally abusive to customers after drinking on the premises. All staff drank on the premises. She denied having an issue with taking instruction from younger employees. The argument with DH was the only one she was aware of. Regarding the glasses she had banged the tray and they broke. She did not believe that customers heard anything.
She denied phoning CM the week after the meeting to seek her P45.
Summary of Respondent’s Case:
The Supervisor gave evidence. On the Sunday after the incident she received a text message from the claimant informing her that she would not be attending work that day. There was no one to cover her shift and so the Supervisor texted her and called several times without success. Eventually she got a text stating ‘I won’t be in I’ve been accused of robbing.’ Over the following days, and in the middle of the night, she received abusive texts from the claimant. She had since gotten a new phone and had lost these texts. She told the claimant not to attend for work until the owners had returned.
SM gave evidence. He liked the claimant and told his wife not to dismiss her at the meeting. He was not present for the meeting.
In cross-examination he explained that they had problems with the claimant letting them down, but that she could do 20 more things and he would not dismiss her, especially given her situation. He had had a lot of chats with her and so he asked his wife to meet her on this occasion. He hoped she would get through to the claimant that she should not argue with other employees.
CM gave evidence. She and her husband were returning from holidays when they got messages about the incident. Neither DH nor the Supervisor was willing to work with the claimant. She arranged to meet the claimant. Her husband said not to dismiss her regardless of what was said. She prepared a written warning to give to the claimant but in the end decided not to give it. She could not believe the argument was over toasted sandwiches. The claimant gave her the money for the sandwiches at the meeting and so she could not understand why it had been blown out of proportion.
Previously the claimant had drunk after work on premises and paid at a later date, but this had been scrapped after incidents on premises. Customers had reported to her that the claimant and DH were shouting in the hall and then in the function room where customers had viewed the incident there.
At the meeting she assured the claimant that she was not accusing her of robbing. She said at least twice that she was not dismissing her. The Supervisor and DH were refusing to work with her and so she would have to rearrange shifts, but that there was also a ‘cooling off period’ required. Other employees would have to change their childcare arrangements to facilitate the change. She felt the claimant had returned to work too soon after her heart attack. She thought the claimant could claim some illness benefit. She informed the claimant that she was not on the roster for the following week, but she did not intend this as a permanent situation. The claimant asked for her P45 twice, but the witness did not organise this until the claimant phoned the following week and requested it again. She felt that the claimant had had time to consider her position by that time and so accepted her request.
In cross-examination she denied that the claimant had asked her to view the CCTV. She did not keep a record of the meeting. She did not know whether the cooling off period was to be paid or not; it was not her area.
Determination:
There was conflicting evidence heard in this case and on balance the Tribunal prefers the evidence of the respondent that no dismissal occurred. Accordingly the claims under the Unfair Dismissals Acts, 1977 to 2007, and the Minimum Notice and Terms of Employment Acts, 1973 to 2005, are dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)