EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1079/2015
CLAIM(S) OF:
Nichola Howard
- claimant
against
Jdj Strand Homes Limited
- respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr T. Gill
Ms H. Henry
heard this claim at Ennis on 20th June 2016
and 8th September 2016
and 9th September 2016
Representation:
Claimant(s) : Mr Conor Glendon, Conor Glendon & Co Solicitors, Ard Na Greine, Clonroadmore, Ennis, Co Clare
Respondent(s) : Mr Alastair Purdy, Purdy Fitzgerald Solicitors, Block 1, Gfsc, Moneenageisha Rd, Galway
Claimant’s case
The claimant started working in the respondent’s shop in May of 2007.The roles consisted of operating tills, stocking up and generally helping out where needed. In October 2013 the claimant was asked by JJ, the owner of respondent company, would she like to go part time. Her hours were cut. Her time was now spilt between the original shop and a new shop.
By February 2014 the claimant was working exclusively in the deli of the respondent’s new shop. She believed she was being singled out for criticism from JJ. Everything she did was wrong. Nobody would listen to her side. In September 2014 when the claimant was collecting her holiday wages from JJ she said it wasn’t fair the amount of work she had to do in the deli and how she was becoming stressed. He said he would talk to her after her holidays.
The claimant felt nothing had changed and she was still getting singled out and cursed at and that JJ had accused her of having an attitude. In one particular incident when she came to the shop regarding a Social Welfare form, JJ refused to sign the form and shouted at her that he was ‘sick of signing forms’. The claimant left the premises very upset. In another incident her work space in the deli was checked by her manger, NN. The claimant believed NN had been happy with how she had left the area. The next day JJ wanted to talk to her. NN was there. JJ was not happy with how the area was left. The claimant said that NN had been happy with it when he checked it the previous evening. She was given a verbal warning by NN .She worked the rest of her shift but was very upset. That evening she contacted an advocacy service. With the help of PM, an employee of the advocacy service, the claimant prepared a letter for JJ.
On 29th March the claimant gave the letter to JJ. The purpose of the letter was to let him know how upset she was with recent events – having her hours cut, the issue with the social welfare forms and being intimidated by the way she was singled out for not keeping the deli clean. Later she was asked to come to the canteen with JJ .He asked her did she receive help writing the letter and that she was “going down the wrong road” with him. She began to have a panic attack. JJ blocked the door and wouldn’t let her leave. He reassured her that they’d sort things out. She had her break and continued working her shift. Later in the deli there was an issue with burnt food. CJ, wife of JJ, threatened to take pictures of the result.
That evening she sent a text CJ to inform her that she wouldn’t be attending work the following morning. The claimant felt she couldn’t work there anymore as her health was deteriorating. On 2nd April she sent a letter of resignation to the respondent outlining her reasons for doing so.
In cross examination the claimant denied that she had requested to go to a three day week but accepted she had said that suited her at the time as she wanted to spend more time with her family. With regards being singled out at the staff meeting in March 2015 she accepted she never raised it as an issue with her staff representative at the time. She accepted she had signed her contract but she had not received the company handbook. She also accepted that NN had not given her a verbal warning. On the issue of the social welfare form she accepted that JJ had said he’d sign them ‘when he got a chance’. She also accepted that after her panic attack in the canteen that CJ stayed with her as her most important concern was that the claimant was ok.
At a meeting on the 06th May between the claimant PM, CJ and NN the claimant accepted that she was offered the opportunity to return to work but she said she just wanted an apology. She denied looking for a settlement at this meeting and was just concerned with getting better.
Respondent’s case
PJ, the original owner of respondent company, gave evidence of training the claimant when she first started working for the respondent. The volume of customers was declining in the shop due to the opening of their new premises. When the claimant asked her about going to a three day week PJ instructed the claimant to talk to JJ.
NN, store manager, gave evidence of a meeting where he had a chat with the claimant and four other members of staff.
In cross examination NN denied that the claimant was ever singled out and said the purpose of the meeting was to get everyone “singing off the same hymn sheet” as the deli was an area that needed improvement. With regards the incident with signing off on claimants work at the end of her shift only to change his mind the following morning, the witness insisted he was not working that day so couldn’t have signed off on her work. NN said he never gave the claimant a verbal warning.
JJ, proprietor of the respondent company, gave evidence of overseeing the moving of the business from centre of the town to a green field site in June 2013. Staff were gradually moved from the former to the latter. When it came to moving the claimant, JJ said she would only move location if given a three day week, which he facilitated even though it didn’t particularly suit him.
With regards to the meeting before the claimant’s holidays in September 2014, JJ said the claimant told him she wasn’t happy working in the deli. Summer was the busiest time in the Deli and things would be getting quieter so he told her to go on holidays and they’d see after to which the claimant responded “could you just not let me go?”.
With regards to a meeting where the claimant believed she had been singled out, JJ believed there were eight other people at the meeting and it was in relation to an impending excellence audit from the EHO. The shop was expecting an audit and a mystery shopper so JJ wanted to put all deli staff on notice of what was expected. He denied shouting at the claimant at this meeting and in fact had actually complimented her for calling other staff to help her when the deli was very busy.
On the matter of signing the social welfare forms JJ explained it was a training day in the shop and it was also last day for placing the orders for the following week. Things were particularly busy and he knew the form would take considerable time to complete so informed the claimant that she had seven days to return the form. JJ returned to the office that night to complete the form.
When JJ received the letter of resignation he believed it was very serious and knew it had to be addressed. He called the claimant to the canteen. When she said she was getting a panic attack JJ urged her to sit down in an effort to calm her.
CJ gave evidence of working with the claimant in the original shop where the claimant had asked her to go to a three day week as she wanted to spend more time with her family. The witness could not sanction it and told the claimant to ask JJ. CJ said the new shop was looking for people to work five days but the claimant never asked to be considered and only recalled the claimant ever being asked to work the two extra days on two occasions.
On the 29th of March CJ said she met the claimant in the deli. The dinners had been burnt. She told the claimant not to worry about it. Later that day CJ got a text from the claimant informing her that the claimant would be out sick the following day.
On the 1st April CJ received a phone call from PM , who told her the claimant had been into see her and would not be coming back to work as she was extremely stressed and anxious due to events at work. A detailed letter followed. CJ was taken aback by the allegations. A meeting was arranged for the 06th of May where CJ asked the claimant to return to work but PM told her that claimant would never work again.PM mentioned a figure for a settlement and also for a redundancy payment. CJ said considering she had a hands-on approach with staff she was “shocked” and “confused” that the claimant was so unhappy in her job that she felt forced to leave and bring a case to the WRC.
In cross examination CJ denied taking pictures of the burnt dinners. She put them in the bin and told the claimant not to worry about it. The claimant was her main concern as she had told CJ was on the verge of having a panic attack.
PM gave evidence of the claimant contacting her looking for advice. The claimant told her she was being bullied and harassed at work. PM stated that she made the claimant aware of her options and helped the claimant compose the letter. She also rang the respondent on the claimant’s behalf. Regards settlement talks PM believed her role was to offer an advocacy service to help people who couldn’t afford legal representation
Determination
As this is a claim for constructive dismissal the burden of proof, which is a very high one, lies on the claimant. They must show the resignation was not voluntary but more as a result of their employers treatment of them.
The Tribunal carefully considered the oral evidence adduced and examined all documentation submitted. There was conflicting evidence on a number of issues. In relation to the verbal warning, if the claimant had taken issue with it at the material time, the Tribunal would have expected the claimant to have raised a formal grievance. The Tribunal is satisfied the claimant did not invoke the formal grievance process. The Tribunal also notes the brevity of time between the receipt of the letter on the 29th of March and the letter of resignation on the 2nd Of April which prohibited the respondent from comprehensively investigating the allegations made in the former. The Tribunal also finds that the respondent acted reasonably in their dealings with the claimant and was both fair and objective throughout. The Tribunal is satisfied that the claimant voluntarily made a decision to leave her position without fully exhausting all avenues available to her to find a solution. Therefore the claim under the Unfair Dismissals Acts 1997 to 2007 fails.
This ________________________
(Sgd.) ________________________
(CHAIRMAN)