EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD519/2015
APPEAL(S) OF:
Simona Jatariuc
- Appellant
against the recommendation of the Rights Commissioner in the case of:
Derryowen Retailing Ltd
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr M. Carr
Mr P. Trehy
heard this appeal at Dublin on 27th April 2016 and 19th September 2016
Representation:
Appellant: Mr. Michael Connellan BL instructed by: Bowler Geraghty & Co., Solicitors, 2 Lower Ormond Quay, Dublin 1
Respondent: Ms. Grainne Duggan BL instructed by: Mr Martin Moloney, Abacus Legal, Law Firm, Suite 1c, Olympia House, 62 Dame Street, Dublin 2
Background:
This case is before the Tribunal by way of an employee appealing a Rights Commissioners Recommendation under the Unfair Dismissals Acts, 1977 to 2007. Dismissal is in dispute; the Respondent contends that the Appellant resigned.
Appellant’s Case:
The appellant commenced work with the respondent in October 2010 as a Shop Assistant. She worked in various areas such as the delicatessen and on the tills. She missed work on 17th March 2014 because she had a headache, she had phoned in one hour before she was due to start work. She spoke to RM, the Manageress, and was told that it was fine. She returned to work on her next working day and went to the delicatessen. The co- owner (NG) spoke to her and told her to go to the coffee shop. She asked NG why and he told her to go there if she wanted to work. She went to the coffee shop.
Eventually NG called her and the Manageress, RM, to a meeting in the coffee shop. NG asked her about her absence on 17th March. He asked her to bring a medical certificate for her absence. She told him that she could not as she had not been to the doctor and that her contract of employment stated that she needed a certificate if she had been out sick for two days. The appellant told the Tribunal that NG’s voice was aggressive and he said if she did not give him a note ….; he held the door open for her and told her not to return without a certificate. She told him that she would speak to his wife (PG) about the matter and he told her that PG had nothing to do with the shop. The appellant took her coat and left. She told the Tribunal she was upset because after so many years of working there she did not know why she was being treated that way.
Days later on she asked someone to check if she was on the rota and she was not. Someone took a picture of the rota and she was not on the rota. She wrote to NG to ask why she was not on the rota. She received no reply. She wrote and asked why if her job was still there why she was not on the rota. She later applied for holiday leave as she was due to go on holiday. This was circa 13th April 2014. Correspondence was opened to the Tribunal.
The appellant explained that the relationship between her and her employer had broken down. She did have a meeting on 06th May 2014. Her sister attended the meeting with her. NG told her that he had made a mistake. He told her that she was the best employee. She asked him that if that were so then why had he held the door open. He said it was his madness. He told her if he owed her any money he would pay her out of his own pocket.
Regarding holiday pay the accountant sent her to a Mr. N who told her that he had not received a record of her holiday because the owner was to send a record and he had not.
The appellant was cross-examined.
The Tribunal heard evidence from MT the appellant’s sister. MT went to the meeting (06th May 2014) because her sister was terrified. MT asked NG a question and he put his hands up in the air and said that it was his mistake. He said that it was his madness. MT asked NG why he sent a document to Social Welfare and NG told her that “Nicholas” sent it and that “Nicholas” was a Director and he had signed the document. She asked him about holidays and NG told her that he did not know. She asked him about money and he told her that she would have to speak with “Nicholas”.
Respondent’s Case:
RM, the Manageress, gave evidence.
On the 23rd of March 2014 the appellant was rostered to work in the Loft area of the respondent’s premises. She arrived for her shift at 9a.m. but told RM she was not working in the Loft and went straight to the deli. The appellant told RM that she could not work in the Loft as she was suffering with a lower back pain and had been for the previous three weeks. RM told the claimant she should speak to the owner, NG. NG, the appellant and the witness sat down together to discuss the matter. NG asked the appellant for a medical certificate for her back pain. The appellant refused to obtain it. RM said the appellant was aggressive in her manner. She got up, pushed the chair and left saying she leaving her job and not coming back.
RM told the Tribunal that she was very surprised at the appellant’s behaviour but felt that she might “cool down” and come back. She had worked with the appellant for the past 6-7 years and she was a very good worker.
RM told the Tribunal that she wrote an account of what had occurred that day. This statement was read into the Tribunal’s record.
Under cross-examination RM clarified that the appellant had told her that she was suffering from lower back pain and had not mentioned a headache.
When put to her that NG had opened the door and told the appellant to leave RM replied that he had not told the appellant to leave but had assisted her on opening the door. RM said that on the day in question NG had requested a medical certificate in relation to the appellant’s back pain.
RM explained that when the appellant did not return to work they had to “re-organise the shop”. The appellant’s position was filled after some time.
When asked had she written the phrase “finished” beside the appellant’s name on the roster she replied no. She clarified that although she did compile the staff rosters NG finalised them.
When put by the Tribunal to her that there was no mention of St. Patrick’s Day on the 23rd of March 2014 RM replied that she did not recall the appellant being absent from work on that day.
NG, the co-owner and Director of the respondent company, gave evidence. He explained that he and his wife (PG) co-owned and co-directed the company. The premises the appellant was employed was comprised of a shop, deli and coffee shop located in Dublin. Both he and his wife had been involved in various businesses for over forty years. NG told the Tribunal that the staff employed in the premises had been working there a long time and the atmosphere was good. The appellant had worked there for 6-7 years and was a very good employee. Some of the appellant’s siblings and their partners had also worked for him and his wife over the years.
On the day in question, the 23rd of March 2014, the appellant arrived for work in an agitated state. She spoke to the Manageress, RM saying she was not working in the Loft that day. NG, the claimant and RM sat down to discuss the issue. The appellant mentioned she was suffering with lower back pain. NG suggested she attend the company Doctor whose office was located nearby. The appellant refused, saying she was packing in her job and got up to leave. NG told the Tribunal that he did get up and assisted her with the door, as “any Irish gentleman would do.” The appellant “left in a huff” and said she wasn’t coming back. NG told the Tribunal that he was surprised she left like she had. He had never told her to leave.
When asked, NG explained that he had suggested the appellant attend the company Doctor as he felt she could not continue to work if she was in pain with her back. He thought the Doctor might give her a medical certificate for work for a week off to rest up. Also it was company policy to have the health of the staff checked out if necessary for their sake and the sake of their customers.
At this point in the hearing the respondent’s representative submitted six photographs. These photographs were of:
Photo 1 – The appellant in work wearing a green tee-shirt and black apron
Photo 2 – The appellant in the same clothing as Photo 1 alongside her husband and child.
Photo 3 – A work outing
Photo 4 – A snapshot of a facebook page showing pictures various pictures of the claimant including Photo 1
Photo 5 – A staff wedding including the appellant
Photo 6 – A staff wedding including the appellant
NG told the Tribunal that in Photo 2 the appellant is dressed in a green tee-shirt, black apron and is working at the time. The appellant’s husband and child are alongside her wearing a green striped hat and green clothing. It appears from looking at Photo 4, in which Photo 1 is included, it was posted on facebook on the 17th of March 2014. This is the day the appellant’s states she was absent from work. When put to him NG states the appellant worked on St. Patricks Day and was paid in full. (The appellant’s payslip for that week was submitted to the Tribunal)
NG told the Tribunal that on the following Monday he spoke to the appellant’s sister and asked her to contact her sister. On the 2nd of April 2014 NG wrote to the appellant replying to her letter requesting the reasons for her dismissal. NG requested the appellant contact him.
On the 4th of April 2014 the appellant wrote to NG requesting all her monetary entitlements. NG replied on the 14th of April 2014 re-affirming she had not been dismissed.
NG met with the appellant and her sister (MT) on the 6th of May 2014. (The notes of this meeting were read into the Tribunal’s record). The appellant never returned to work.
Under cross-examination NG stated that he had written the phrase “finished” beside the appellant’s name on the roster.
When put to him NG stated that he was 100% positive the appellant worked on the 17th of March 2014 and that he had not requested a medical certificate for a one days absence.
When put to him NG stated that had the appellant returned to work he would still have requested a medical certificate regarding her back pain.
PG, the co-owner and Director of the respondent company, gave evidence. She explained that she mainly worked in the Post Office located on the premises.
PG stated that she had retrieved the photographs produced to the Tribunal and had downloaded some of them from the appellant’s facebook page.
When asked PG said that she was aware the appellant was suffering from back pain but could not remember if she had informed NG.
When put to her PG said that a green tee-shirt was not the standard uniform of the respondent company.
The respondent’s accountant gave evidence. He explained that he compiled the employees’ wages as one of his duties. He stated that the appellant had been paid for working on the public holiday of the 17th of March 2014. She was paid her basic 29 ½ hours plus 7 ¼ hours for the public holiday.
Determination:
Dismissal in the case is in dispute and therefore the onus rests on the Appellant to prove her case. Having carefully considered the evidence in this case, the Tribunal considers that the Appellant has not shown that she was dismissed. The Tribunal finds the evidence of the RM, the manageress, and NG, the owner of the Respondent, convincing. It was clear that the Appellant was a highly regarded employee. The culture of the Respondent’s workplace was such that the Appellant, and her extended family who also worked in the shop, were clearly considered part of the team of the shop. The Tribunal finds the version of the meeting between the Appellant, RM and NG on 23 March put forward by the Claimant unconvincing. The Tribunal was also surprised that the Appellant did not have any recollection or explanation of the photographs of her, her husband and her child dressed in festive green in the shop. It is a reasonable inference that these photos were taken on St. Patrick’s day 2014, the day they appear to have been posted on Facebook. In the circumstances, these photographs also corroborate the position of the Respondent that the Appellant was working on 17 March 2014, when she alleges that she was not. It follows that the meeting of 23 March 2014 did not concern an alleged absence on 17 March 2014 as alleged by the Appellant.
The Tribunal finds in all the circumstances that the Appellant was not unfairly dismissed. Accordingly, the Tribunal upholds the Rights Commissioner recommendation and her appeal under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)