UD489/2015

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD489/2015   

CLAIM OF:                                                                                                     

Ian O’Gorman                                                                          

Against

Patisserie Royale Limited

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms O. Madden B.L.

Members:     Mr D. Peakin

                     Ms M. Maher

heard this claim at Dublin on 30th September 2016

Representation:

_______________

Claimant:       Mr. Colm O'Cochlain, Colm O'Cochlain & Company, First Active House, Old Blessington Road, Tallaght, Dublin 24

Respondent:   Mr Don Garry, Biocare, Unit K2, Drinan Enterprise Centre, Swords Enterprise Park, Feltrim Road, Swords, Co Dublin

This is a case of constructive dismissal and therefore the onus is on the claimant to prove his position became so untenable he had no alternative but to resign his position. The respondent is a commercial bakery providing supplies to cafes and restaurants.

Claimant’s case:

The claimant gave evidence of starting to work for the respondent as a night shift picker and working his way up to sales office manager by May 2014. He told the Tribunal that his duties were taking calls, orders, deliveries and any other issues that arose. He answered directly to both directors DC and KM.  

A situation developed where LC (wife of director DC) worked in the same office as him. He had previous issues with her and he said that as a wife of a director she felt as if she could do and say as she pleased. The claimant gave evidence of instances where LC had been aggressive towards him and he felt she was trying to get him into trouble.

He told the Tribunal that after one argument (10^th February) where she shouted obscenities at him, he asked that she not to speak to him like that again. He reported the issue to KM (the second director) who said “ she is D’s wife and there is nothing I can do”. The situation became very stressful and he felt upset, he said, it was not a nice place to work or a good working environment.

The claimant went to KM on a later date but got a similar reply. He also went to PK (financial manager) but was told its “D’s wife, nothing I can do”. He finally put the issues in writing on 2^nd March (as per the company’s grievance procedures). An external mediator DG was appointed and they met informally a week later. He told the claimant that he understood that LC was a difficult person to get on with but to try and work with her, to think about it for a week or so.

The claimant talked things though with his partner, went to LC and said let’s try and make this work. He said that there was a day or two of normality but that DC was angry with him and was either ignoring him completely or was aggressive, so he was back to square one. The mediator came back a week later and told him that if he wanted to go to a Tribunal so be it, it would get awkward and personal for him. He saw no prospect or indication of a change in the work environment and this contributed to him feeling anxious and stressed when dealing with the respondent. He felt he had no option but to leave his employment and submitted a letter of resignation on 1^st April 2015. The claimant gave some evidence of his efforts to mitigate his loss of his earnings.

Respondent’s case:

KM (director) told the Tribunal that the claimant had no previous disciplinary issues and was given the job as sales assistant, he was not the office manager but was on an equal footing to LC. No contract or terms and conditions of work existed for the post of office manager.

He said that the claimant and LC were two very different personalities, one laid back and one pro-active. The claimant told him that he was finding it hard to work with LC so he asked her what was going on, she told him that the claimant was not working efficiently. KM said he did not tell the claimant what she had said but he thought things were sorted until he got the grievance letter. The letter was not replied to but he did bring in the mediator DG who seemed to think everything was ok. He was surprised by the resignation but accepted it knowing there was a clash of personalities but denied ever saying that nothing could be done because LC was a director’s wife.

Determination:

In a claim alleging constructive dismissal there is an onus on the employee to prove that his/her dismissal was unfair. There is an obligation on an employee to try and resolve whatever the problem is before walking out of the job. Having considered the evidence adduced at the hearing the Tribunal finds that the reason the claimant gave for resigning his employment on 1st April 2015, mainly the respondent’s refusal to meet his concerns and to fully investigate his written grievance, left the claimant with no option but to resign.

The Tribunal finds the appropriate award to be compensation of €20,000 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

        (CHAIRMAN)