UD1398/2014

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1398/2014

CLAIM(S) OF:                                                                                   

Jane Murray

 - claimant                                                   

against

Europhil Service Station Limited

 - respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms P. Clancy

Members:     Mr T. Gill

                     Ms H. Murphy

heard this claim at Ennis on 3rd December 2015 and 1st February 2016

Representation:

Claimant(s) :       Mr. James Nash, James Nash & Co., Solicitors, Scariff, Co. Clare

Respondent(s) :   Ms Vanessa Costello, ESA Consultants, The Novum Building, Clonshaugh Industrial Estate, Dublin 17

Claimant’s Case

The claimant commenced employment with the respondent company in September 2009. Her contract of employment stated her job title as delicatessen assistant. Her role however was acting delicatessen supervisor with responsibility for the weekly rosters, ordering, recording and managing the food safety requirements, health and safety, and stock taking. Her hours were 6.30am to 2pm. She worked four days per week and worked most Sundays on the same rate of pay. The claimant had a good working relationship with her employer and enjoyed her work.

In 2014 (N) became her day to day manager and indicated that she was making some changes in the store. A number of informal ad hoc discussions took place. The claimant was informed that she would be moved to the takeaway, also owned by the respondent, at the same premises, on her return from annual leave. The reason given for the move was that she might be able to improve the running of the takeaway which was not performing well. The hours were 12pm to 10pm which did not suit the claimant’s personal circumstances. The claimant was told that the changes were to facilitate the promotion of (LW) in the delicatessen. On the claimant’s return from annual leave, a colleague informed her that she was rostered on the evening shift on the shop floor. She contacted (N) on 4 September 2014 about the roster and returned to work on 6 September. On 6 September the claimant learned that her move was due to accusations of bullying against her by her colleagues in the delicatessen area. The claimant met with (N) on the 8 September accompanied by a colleague (KC). (N) informed her that staff reported being scared of her, and were threatening to leave. The claimant informed (N) that she was happy to work morning shifts on the shop floor but was offered evening shifts only. The claimant denied bullying any member of staff and due to the seriousness of the allegations requested statements from those who complained. A period of one week was agreed to supply statements and when she had not received them she emailed (N) offering to collect them, (emails requesting the statements were opened to the Tribunal). The claimant received no response and sought legal advice. A claim for unfair dismissal was submitted on the 19 September 2014. As she required her P45 for social welfare purposes she again e-mailed the respondent requesting the document.

The claimant received a letter dated 24 September 2014 inviting her to invoke the grievance procedure. A meeting was held with (N) where the claimant explained that her hours of work were taken from her without any reasonable explanation, and allegations of bullying without any evidence were made against her. (N) denied allegations of bullying by colleagues, and stated that she herself felt bullied by the claimant. The claimant explained that she had never refused morning hours and was now being offered only one shift, on which she could not survive. The claimant denied ever receiving a letter and a new contract from the respondent after that meeting. The claimant’s last day attending work was 7 September and a medical certificate was submitted by the claimant on the 15 September 2014. The claimant’s employment ended on the 30 September 2014.

(KC) a former colleague and friend of the claimant gave evidence of attending the meeting on the 8 September as a witness. The claimant put it to (N) that there were allegations of bullying against her. The claimant agreed to allow time for (N) to obtain statements. A discussion on her hours took place and the claimant offered to work on the shop floor. (KC) attended a second meeting referred to as a grievance meeting on the 1 October 2014. The meeting was unlike any grievance meeting she had ever attended with accusations of bullying by both sides. Contract hours were also discussed and a request for evidence of bullying to be furnished.

Respondent’s Case

(N), director of respondent company gave evidence that the claimant was employed as a deli assistant. She worked in the deli/take-away area which the witness described as being all one area. She told the Tribunal that the claimant was an excellent worker and with whom she enjoyed a good relationship. She gave evidence that the claimant wanted to move from the deli area as she wanted a break from cooking. She had been requesting such a change for a year or two. The witness discussed with the claimant the possibility of her moving to the shop floor area and she (the claimant) was excited about this possibility.

On 4 September 2014 the claimant, on her return from holidays was rostered to work for three shifts on the shop floor, one of which was an evening shift. The claimant informed the witness that she could not work evening shifts and the witness told her to “bear with it for now” and she would review the matter in two weeks. The witness accepted that the claimant had worked mornings only in the deli/take away area but was unaware that evening shifts would be unsuitable for the claimant. She held a meeting with all her employees on September 2014 in relation to possible allegations of bullying in the workplace. However no allegations of bullying were confirmed at that meeting. She also investigated the claimant’s allegation of bullying and was satisfied that no bullying had occurred.

She gave further evidence that she held a resolution meeting was held on 1 October 2014 but no resolution was achieved and the claimant requested her P45 and left the meeting and subsequently resigned from her employment.

The claimant gave further evidence that she had made no attempts to obtain alternative work since her last day of employment with the respondent, she had completed a ‘Back to Education’ course, which was now finished.

Determination

The Tribunal carefully considered the oral and written evidence, and submissions for both parties. The Tribunal notes that dismissal is not admitted, and therefore the claimant must satisfy the Tribunal that she was correct in deeming herself to be constructively dismissed, and it is noted the threshold for so doing, is very high.

There was significant conflict of evidence between the parties, and it is noted that the claimant was only asked to work one evening shift, and the roster would be reviewed soon thereafter. The claimant admitted she was upset an allegation of bullying had been made against her, even though this was not followed up formally by her colleagues.

The claimant was invited to lodge a grievance on 1^st October, 2014, and she attended a meeting on that date, from which she exited, requesting her P45. The claimant disengaged from the resolution process, she did not sufficiently exhaust all internal procedures, and appears to have acted too hastily in resigning.

The claimant did not prove, to the Tribunal’s satisfaction, that her conditions at work, or her employer’s treatment of her was so unreasonable so that she was in effect forced to resign, or that she had exhausted all reasonable avenues to remain on at work, therefore, her claim must fail.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)