EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Bernie Fitzgerald -claimant
UD970/2015
against
Slowford Limited -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Browne
Mr. F. Dorgan
heard this claim at Waterford on 31st August 2016
Representation:
Claimant: Ms. Tara Geoghegan B.L. instructed by Mr. Dermot O'Brien,
David Burke & Company, Solicitors, 24 Mary Street, Dungarvan, Co. Waterford
Respondent: Mr Kieran Higgins, McCullagh Higgins & Co, Solicitors, 1-2
Cois Mara, Dungarvan, Co Waterford
Summary of evidence:
Dismissal as a fact was in dispute between the parties.
The claimant was employed from April 2014 to August 2015 in the respondent’s takeaway business. It was agreed between the parties that the employment was uneventful until late July 2015.
Mr. D is a director of the respondent company with the usual responsibility for managing the business. However, he departed for holidays in late July 2015 leaving his son M in charge of the business.
It was M’s evidence that it was from in or around this time that his working relationship with the claimant deteriorated. M gave evidence of a number of dates when he alleged the claimant failed to carry out all of her duties and he attributed this change in behaviour to an incident on the 25th July when there was verbal exchange between them regarding some residual flour left on a counter top.
It was the claimant’s evidence that she did not fail to fulfil her duties and that in fact she was more likely to go over and above in carrying out her duties then to underperform. It was the claimant’s case that she was dismissed on 10th August 2015 when she queried with M why he had given her hours the previous evening to another employee. It had been the claimant’s turn to be rostered for Sunday work, which attracted a premium rate of pay. It was M’s evidence that the claimant had previously refused the offer to work Sunday hours as the work entailed manning the grill. The claimant refuted that she had refused the hours in the past and stated that she had manned the grill as part of her duties on many occasions.
A verbal altercation ensued between the parties and it was the claimant’s evidence that M told her that her employment was terminated. It was the claimant’s evidence that she attempted to diffuse the situation by going about her duties and picking up items to be put away but M knocked these from her hands and said to her “you don’t get it, you’re finished” and physically assaulted her by pushing her away. M gave evidence refuting that he made these statements to the claimant or pushing her but acknowledged that he had applied pressure to the items the claimant was holding and asked her to leave them down. A witness who was present heard the verbal altercation that occurred but did not see any physical altercation albeit he could not see everything from where he was positioned.
M’s evidence was that he did not terminate the claimant’s employment but that he wanted her to leave the premises for that night and he telephoned the Gardaí to have the claimant removed from the premises. When they arrived he confirmed to them that the claimant was not dismissed but that he wanted her off the premises that night. M believed his father Mr. D was best placed to deal with the matter on his return from holidays.
M’s sister gave evidence that she arrived in or around the same time as the Gardaí and she observed that the claimant appeared to be in shock. She told the claimant that her father would deal with the matter on his return. She was present at that meeting and gave evidence that her father offered to return the claimant to her cleaning duties without interaction with M.
The claimant stated in evidence that she was satisfied to wait until Mr. D returned from holidays as she thought he might be able to relocate her to another premises where she had previously been employed by the company.
Mr. D gave evidence that he is the person with authority in the company in relation to employment issues. When he met with the claimant on the 24th August he told her that her position was still there for her but she was concerned about the fact that M was in the premises and he told her that he would be responsible for managing that issue. He did not dismiss the claimant but offered to return her to her position.
It was the claimant’s evidence that while Mr. D expressed that he was sorry to lose her from the employment, he did not actually offer her a position back and she did not take it from that meeting that he wanted to retain her in the employment. The date of termination on her P45 stated the 10th August 2015.
The claimant gave evidence of her financial loss and her efforts to secure alternative employment which she did some nine weeks later.
Determination:
In his absence on vacation Mr. D left his son M in charge of his restaurant premises. The Tribunal is satisfied that while in this role, M enjoyed the rights (and had the obligations) of a Manager in such a position.
The Tribunal was faced with an evidential conflict as to what precisely occurred on the evening of the 10th August 2015. It was common case that there was an argument between the claimant and M and that the claimant was asked to leave the premises. The claimant’s evidence was that she was sacked. The evidence given by M was that he simply needed her to leave the premises on that evening so as to defuse the situation.
Whatever the truth around this particular aspect of what occurred, the Tribunal is satisfied that once M involved the Gardaí with a view to removing the claimant from the premises the only reasonable interpretation was that this act terminated the claimant’s employment. In the Tribunal’s opinion there was simply no way back for the claimant.
M had an option which he did not take. Had he done so, this would have been far more consistent with his expressed wish to leave all matters for resolution by his father on his return from Italy. It is clear that the claimant sought to diffuse the position by picking up some product and a bucket and by attempting to go about her duties. M prevented her from doing so and opted, instead, to involve the Gardaí
The claimant’s employment was terminated summarily. This termination was unfair. The Tribunal awards the claimant compensation of €1,458.00 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)