EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Anna Katarzyna Bialoszewska UD1701/2013
-Claimant
against
Charles Chawke T/A Bill Chawkes
-Respondent
and
Charles Chawke T/A Bill Chawkes,
-Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Clancy
Members: Mr. T.L. Gill
Ms H. Kelleher
heard this claim in Limerick on 19 October 2015 and 12th January, 2016
Representation:
Claimant: Ms. Colette Hannon BL instructed by Mr. Kieran O’Brien,
O’Brien & Associates, Solicitors, 23 Barrington Street, Limerick
Respondent: Mr. Ronan Connolly, Connolly & O’Neill, Solicitors,
15 Parnell Street, Ennis, Co. Clare
Claimant’s case:
Giving sworn testimony, the claimant said that she was a chef who had started with the respondent in 2010. Her employment ended in 2013 after three-and-a-half years. She had worked a forty-hour week but did more if the respondent wanted.
However, the claimant fell on a wet floor. Aided by adrenalin, she worked on despite leg swelling but her injured leg was not right. She was paid for some four weeks while on sick leave but she subsequently heard that she was paid for two weeks as holidays not yet accrued and two weeks ex gratia. She was medically diagnosed as having sustained a serious ankle sprain. However, she claimed that the respondent later made an issue of her GP not being a leg specialist. She furnished medical certificates to the respondent.
On 16 September 2011 the claimant was able to return. She was rostered for 18 and 19 September to work 11-hour shifts but she had been certified fit to work no more than eight-hour days. She could not work eleven hours. She had previously worked long and short days. The respondent never sent her to the respondent’s doctor but did not believe in her or her doctor. She was told that a detective had followed her.
The claimant was offered a settlement sum of €1,150 but, after ringing her solicitor, she did not accept it. The respondent intimated to her that her life would be hell if she did not accept it. The claimant ultimately resigned.
Asked about a grievance procedure with the respondent, the claimant replied that she had tried to engage with the respondent all right.
Regarding loss, the claimant said she had tried to get work. She got part-time work. She was on social welfare but could work two days. She did a beauty therapy course offered by Social Welfare who continued to pay her. She had got employment after a year on some four hundred euro per week gross (€423).
Under cross-examination, the claimant said that she had told her solicitor what the respondent had said to her and that Social Welfare had said that she had not been rostered at the time in question and that “the Department” had queried this with her.
On the subject of the claimant’s sick leave, the respondent’s representative confirmed that the respondent had paid ex gratia for two weeks and two weeks’ pay for holidays not yet accrued.
The claimant denied that she had ever said that it was not worth her while travelling to the respondent to work just eight hours. She did not recall telling her solicitor this.
It was put to the claimant that the respondent would say that she could have worked on 20 September. The claimant replied that she had never got a letter about a back-to-work meeting on 18 September and that the respondent had never contacted her. It was put to her that the respondent would say that she had wanted three eleven-hour days. She denied this maintaining that she had given the respondent a letter mentioning an eight-hour day..
It was put to the claimant that the respondent had handed everything to an insurance company. She replied that she was told that it could take months or years. The claimant denied having received the respondent’s 23 September letter and said that the respondent had said that she could go back to work if she dropped her claim.
It was put to the claimant that she had not engaged the grievance procedure but had walked out.
Asked why she had not gone to mediation, the claimant replied that she “tried to contact them”. When it was put to her that somebody independent could have been called in she replied that she gave lots of chances. When it was put to her that the respondent had wanted her back she replied by asking why the respondent had wanted eleven hours and she said that the respondent had just wanted her to drop the claim. When it was put to her that she had spurned a chance of independent mediation she replied that she did not want to be “on the social” but that she had been bullied and the respondent had said that she would be investigated. The Tribunal was told that there had been phone calls and texts to AF of the respondent. She said that she had known nothing about 20 September and that she had not been on the roster for that day. On 17 September she had been told about 18 and 19 September.
Giving sworn testimony, KOB (the claimant’s solicitor) said of the respondent’s settlement offer that the claimant had sustained a serious injury and that he had been very annoyed. He had been told that an eight-hour day was the most the claimant could do.
KOB told the claimant that the settlement offer had been rubbish. She felt that she was being railroaded into a withdrawal. He had rejected the respondent’s offer out of hand. He felt that the claimant had made enough contact with the respondent by ringing and texting.
Under cross-examination, KOB said that insurers had the call and that SB of the respondent had said that he would give “a few quid”. After it was put to KOB that the respondent would say that the date of a meeting was 18 September rather than 25 and that this was not written about KOB replied: “I put my hands up. I was remiss.”
KOB said that a subjective judgment had to be made on the claimant side and that SB had been “totally arrogant”. KOB thought that his side “did enough”. Asked why mediation had not been used, he replied that there had had been “no point”. Asked if the claimant side had been “trigger-happy” he replied that his side “did all we could”.
Questioned by the Tribunal, KOB said that he was the solicitor for the personal injury claim. It was not normal that an offer be made to a claimant and not to a solicitor. Asked if it had been a concern to him that he was bypassed, KOB replied that he had spoken to SB and that much time would be wasted.
KOB agreed that the grievance was in the letters. He said that he had not seen the 23 September letter before that hearing day. The claimant had been in a “brittle” situation.
The case was adjourned to 12 January 2016.
Respondent’s case:
The Tribunal heard from (SB) the group financial controller. The Claimant had an accident in April 2013. The Claimant submitted medical certificates. They did pay her for a number of weeks despite the company policy that they did not pay sick pay. They also paid her holidays for two weeks. Therefore the Claimant was paid for four weeks. They then received a letter dated 14th June 2013 form the Claimant’s solicitor. The witness explained that he was surprised to receive the letter because he could not compel the Claimant to return to work. If the Claimant was not certified to return to work then she could not return to work.
At some point in time the Claimant was certified fit to return to work. They did receive a letter from the Claimant’ solicitor dated 13th September 2013, stating that a return to work certificate was enclosed and that she was certified to return commencing on 18th September 2013 with the caveat that she should restrict herself to an eight hour day. He and the general manager met with the Claimant on 25th September 2013 with a view to discussing her return to work
They had a meeting and the Claimant told them that she could “no longer do eight hours”. She told them that it was not worth her while to go from, Adare to work. She told them that she would three eleven hour days. They told her that it was not possible because of what her doctor note said. The Claimant wanted to change her five day forty hour week to three day of eleven hours.
It was put to the witness that the Claimant case was that they wanted the Claimant to sign off on a settlement of her personal injury case before she could return to work and he denied that was the case. At the end of the meeting he did tell the Claimant that the insurance company did say to sign-off on €1000.00, but that it was not linked (To her work), “There was no link”. The witness explained that he had other employees who had claims, and two others are still working for them.
A letter dated 23rd September 2013 was opened to the Tribunal. The letter was from the Respondent to the Claimant.
“We are in receipt of a letter from your solicitor of 18 September 2013.
The nature and tone of this letter is very confusing, your solicitor seems to think that we have no work for you. That is positively not the case. As discussed at our meeting last Wednesday 18 September 2013 we simply required some clarification as to your requested change in working hours so that we could roster you correctly.
We would like to point out again that these changes were requested by you and we reiterate that we are happy to accommodate you but we need to make sure that you are fit to work over 8 hours per day, failure to do this could be seen as negligent on our part as employers due to your final back to work cert from your solicitor which clearly states a maximum of 8 hours per day restriction.
I do not know where your solicitor gets the idea that you are 'surplus to requirements', that is not now or has it ever been the case, you are fully aware of this as we have not advertised your position nor have we hired any other person to carry out your work in our kitchen, we have been simply scraping by awaiting your return.
Again can you please clarify this matter for us or will we just roster you for 8 hour shifts for this week. If you would like to call me xxxxxx or mobile xxxxxxx we might move things along a little quicker so that we could get you back working and our customers can be better served.”
At a later time the Claimant sent a letter dated 25th October 2013. The letter was opened to the Tribunal and was a letter resigning from her employment. The witness explained that this was the first he knew of a problem. A letter of 31st October 2013 was opened and the letter referred to the grievance procedure. The witness explained that he could not see where the Claimant engaged in the process. He felt that they did all that they could for the Claimant. They did not try to force or intimidate the Claimant to sign document. They did not try to make the Claimant work eleven hour shifts.
The Tribunal heard evidence from AF who is the manager in charge of the pub in Adare. A clause in the grievance procedure was opened to the Tribunal: “The next step is to inform the managers of the pub who will be in a position to respond to his or her complaints”. The witness explained when asked that he was never contacted in this regard.
He was in attendance at the meeting with the Claimant. The Claimant initiated the conversation regarding three shifts of eleven hours. He could not recall why she did that. Regarding the form, there was no pressure placed on the Claimant to sign the form.
The witness explained that “he got on great with the Claimant from day one”. He also told the Tribunal that, “I wanted her back to be honest she was very, very, good, she was excellent, the food went through the roof”. He never had a “cross word” with the Claimant.
Determination:
The Claimant failed to discharge the burden of proof that she had no option but to resign. The letter from the Respondent to the Claimant dated 31st October 2013 clearly indicated to her that she should withdraw her resignation. The Claimant was offered the services of an external mediator. The Claimant failed to engage with the Respondent and did not exhaust all internal procedures.
The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)