EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Sandra McCann UD1106/2014
against
Balaglen Limited T/A Whoriskeys Eurospar
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Ms. R. Kerrigan
heard this claim at Letterkenny on 11th January 2016
and 13th April 2016
Representation:
Claimant: PA Dorrian & Co, Solicitors, St Anne's Court, High Road,
Letterkenny, Co Donegal
Respondent: Gallagher & Brennan, Solicitors, House B, Carnamuggagh
Upper, Kilmacrennan Road, Letterkenny, Co. Donegal
Claimant’s Case:
This is a case of constructive dismissal. The respondent is a supermarket. It is the claimants case that on her return from maternity leave she did not return to her original position. She told the Tribunal that she was office administrator with general office duties, including invoices, till floats, company lodgements etc. The claimant had her own desk, phone and computer.
On her return to work in May 2014, BC was sitting at ther desk, doing her job. BC was related to the owners of the business. CG was also in the office and was the girlfriend of the owners son (JW) and both of them were doing all the work. The claimant walked around looking for things to do and was given some meaningless tasks. The situation continued for two weeks and she asked for a meeting with HW the owner/director.
The meeting took place on 10th June 2014 with the owner (HW) and his wife and co-owner (MEW). A colleague (MS) attended with the claimant. She was assured that her job was safe and was told to do stock taking for the deli, (it was the former managers job and she had no idea how to do it), waste minimilization, entering invoicing (she had no computer) and putting up campaign posters. HW told her that he wasn’t putting her in an apron or on the tills. He also said there was a job up at at the oil office, but in light of how things had developed it was no longer an option. How could he trust her. He also said “you hardly want me to make a member of my family redundant”.
The claimant said that she knew she was never going to get her original job back. Nobody was talking to her except MS and she would always be behind the others in the pecking order even though she had done nothing wrong. She said that BC and CG had been sent to Dublin for training two weeks before her return and she had not been advised or invited. She did not want to leave her job but was left with no other option.
She attended work for three days after the meeting on the 10th June 2014 then attended her doctor. She was certified medically unfit, submitted medical certificates and never returned to work for the respondent.
The claimant gave detailed evidence of the mitigation of her loss of earnings and the periods of time she was unfit for work.
In cross-examination the claimant explained that when she returned from her maternity leave she sat at MS’s desk and overseen her work while she was on two weeks’s holidays. Following that she had little or no work to do and and no computer to work on or desk to sit at.
She told the Tribunal that she made daily requests for a meeting with the owner and had to wait nearly three weeks before it happened. When put to her she agreed that HW had offered ½ a desk to work from. HW told her if she was still unhappy she could speak to their HR Consultant. HW also informed her she could go to the LRC and “whoever she wanted”.
When asked by the Tribunal the claimant stated there had been little agreement at the meeting and neither the minutes of the meeting of the 10th June were read to her nor was she given a copy of them.
On the 12th June 2014 a meeting was held with all office staff attendeding except herself. The claimant felt isolated and spent the time walking around the store as she done so the previous day as she had no work to do.
When put to her if she felt she had exhausted the respondent grievance procedure she said she felt she had. She felt that following the meeting on the 10th June 2014 nothing would change and felt “it was the end of the road.”
Respondent’s Case:
JW, the General Manager and son of the respondent owner gave evidence. JW gave a detailed account of the changes that took place during the claimant’s absence while on maternity leave and since the previous Manager left the respondent’s employment. However, despite the changes the claimant’s job description remained unchanged.
When the claimant returned from maternity leave his parents, HW and MEW, instructed she was to cover MS’s work while MS was on two weeks holidays. The claimant had plenty of work to do and would not have been “walking around the store with nothing to do” as she had said in evidence.
In cross-examination JW agreed he had not attended the meeting with the claimant on the 10th June 2014 and she had not requested a grievance meeting with him.
JW explained that while the claimant was on maternity leave BC had covered her workload. When put to him he said that had the claimant remained working with the respondent she would have attended the same training course as BC and CG.
HW gave evidence. He told the Tribunal that the claimant had approached his wife, MEW, and requested a meeting to discuss issues she had. The meeting was held on the 10th June 2014 with HW, MEW, the claimant and MS in attendance. The claimant said she was not happy. She had no desk to work from and no computer. HW explained to her that the person who dealt with the computers was on leave and would sort the issue on their return. He asked the claimant to oversee the wastage levels in the butchery and deli departments. HW told the Tribunal that he assured the claimant that her job was 100% okay. Around this time HW asked BC and CG to join the meeting to discuss the atmosphere in the office. HW explained that when he entered the office, albeit not on a daily basis, he felt “friction” in the air. He felt if he could get the staff together to discuss the issue the atmosphere would improve.
On cross-examination HW said he told the claimant at the meeting if she was not happy she could discuss her issues with their HR Consultant. He refuted he had told her she could go to the L.R.C. or whoever she wanted nor had he said he was giving her an apron or putting her on the tills.
When asked who was carrying out the claimant’s duties following her leaving the employment he explained that the duties had been shared between the remaining staff and overtime had been paid to get the work done. The claimant’s position had not been replaced to date. When asked he stated that at present there were three people working at the three desks located in the office but explained that had the claimant remained working the office would have been redesigned and a fourth desk installed.
Determination:
This is a case of constructive dismissal and therefore the onus of proof falls to the claimant to prove her position became so untenable she had no alternative but to leave her employment.
On her return from maternity leave the claimant found she had no desk to work from, no computer to imput the data she had previously and, having covered MS’s duties while she on leave, no other work to carry out. She requested and attended a meeting to discuss these issues with the owners but subsequently nothing seemed to change. The claimant herself felt it “was the end of the road”.
The Tribunal accepts the evidence of the claimant and the fact that her role was not filled following her departure supports her case.
She raised her grievance at the meeting of the 10th June 2014 and the Tribunal accepts her evidence that her grievance was in large part, disregarded.
The Tribunal have carefully considered the evidence and finds in favour of the claimant. Accordingly, the Tribunal awards the sum of €4,500.00 (four thousand five hundred euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)