EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD614/2012
CLAIM OF:
Anita Nagle
against
Bowling Buddies Limited t/a Bowling Buddies
- respondent A
Lynch Leisure Limited t/a Buddies
-respondent B
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr J. O'Connor
Members: Ms M. Sweeney
Mr D. McEvoy
heard this claim at Killarney on 18 February 2014, 4 November 2015 and 27 January 2016
Representation:
Claimant : Ms Karen Ruddy B L instructed by Mr Liam Ryan, Sheehan Ryan & Company, Solicitors, 61/62 New Street, Killarney, Co Kerry
Liam Ryan, Downing Courtney & Larkin Solicitors, 84 New Street, Killarney, Co Kerry
Respondent : Ms Clodagh Brick B L instructed by Mr Eoin Brosnan, Niall Brosnan & Co, Solicitors, 5 St Anthony's Place, College Street, Killarney, Co Kerry
Following protracted submissions and comments and evidence from the claimant the Tribunal by a majority decision finds that the proceedings against all the listed respondents can proceed.
The first named respondent runs an entertainment enterprise based in Tralee, county Kerry. The second named respondent operates an indoor play centre aimed at children. This centre is based in Killarney, county Kerry. Both respondents share the same two directors-a husband and wife team and have a common secretary who is also one of the directors.
The determination of the Tribunal was as follows:
Claimant’s Case
Subsequent to completing her Leaving Certificate examinations in the summer of 2006 the claimant gained employed with respondent A in October that year. That autumn she also commenced a four year study in electronic business in Tralee Institute of Technology. This situation allowed her to work part time while undergoing a full time third level educational course. With the knowledge and approval of at least one of the directors the claimant started a work placement course in the autumn of 2008. This course entailed her working full time and she was due to recommence her college study in September 2009. In early 2009 and without any consultation or discussion the claimant was effectively transferred to manage the entertainment centre in Tralee. While she was expected to fulfil all the duties such a post demanded the claimant maintained she did not receive training for that role.
By that time the claimant was assisting the two directors in their domestic life. That assistance included babysitting and other activities. She was also responsible for the security of the premises and on at least one occasion that role forced her to get up to check the premises alone during the night.
In telling the Tribunal that she never received payslips the claimant acknowledged that she showed little interest in them and their contents. Payslips from early January 2009 to late January 2010 were submitted as evidence. Those documents identified her employer as alternating from one respondent to another and also displayed her remuneration based on a salary/basic pay and standard/weekly hours. That remuneration fluctuated throughout that period but the trend was downward. The claimant expressed displeasure at this reduction and confusion as to the identity of her employer.
In reporting back to work from leave on 10 December 2009 the claimant was notified that her position as manager was being withdrawn and that she would be an assistant to an incoming manager. That news was accompanied by an announcement that her remuneration was again to be reduced. The claimant objected to these developments which left her shocked and devastated. It was her contention that at no time up to then had her employer raised any adverse issues relating to her as an employee. Up to that time she had never been subjected to any reprimand or disciplinary sanction. When she turned up for work the following day the male director commented that had he been treated the way she had been then he would not have gone back to work that day.
The claimant described the following weeks at work as hassle and trouble. In early January 2010 she was called to a meeting with the male director and the new manager where she was presented with two separate warnings-the first relating to her alleged poor performance as a manager in Tralee and the second for texting while at work. She felt both warnings were unjustified. In the case of the former she had never received any complaints about her performance and in the latter while accepting texting was not allowed this rule was never applied up to then.
Her solicitor wrote to the male director about those issues and the respondents’ solicitor replied some days later. The claimant stated that the part of the contents of that reply were untrue and misleading. That written exchange took place while the claimant was absent on sick leave. She and a colleague arrived a few minutes late for work in mid-January due to the dangerous conditions on the roads. The director threatened to deduct monies from their wages due to that lateness. This incident combined with her ongoing unsatisfactory issues with her employer led her to conclude that she had enough of that treatment. She initially reacted by visiting her general practitioner and obtaining a medical certificate.
The claimant told the Tribunal that events in December 2009 and January 2010 forced her to leave her employment. Prior to that time and especially during it she had aired her complaints and objections to the respondents and added that due to their treatment that she had missed out on one year of her college course. She had not been made aware of a formal grievance procedure nor ever invited to utilise one.
A former employee of the respondents who worked closely with the claimant said that she never heard of the claimant been reprimanded by her employers. This witness described the management style of the claimant as professional. However, in early December 2009 this witness was informed that the claimant’s position as manager was being replaced. When the claimant learned of this she was upset at that demotion.
Respondent’s Case
Two former colleagues of the claimant who were based in Killarney gave brief evidence. The first witness labelled her employer as brilliant. She added that the claimant never referred to any grievances or complaints in relation to her work. The second colleague also stated that the claimant never spoke of any difficulties at work but that she had no knowledge of events in Tralee.
GL, director of respondent company, gave evidence that in March 2009 that the respondent was opening a bowling complex in Tralee and offered the claimant the position of manager there. The business was successful and operating well up until August of that year but GL began noticing issues with the management of the premises and he felt it had ‘ started to turn into a playground’ .He decided to have ‘an informal chat’ with claimant about needing to ‘take more control’.
There was also an issue with the claimant planning to return to college on a fulltime basis from September. GL felt it would be too much for the claimant to keep performing her role on a fulltime basis while attending college fulltime as well. In December 2009 GL approached an experienced engineer, SB, to work in Tralee as a fulltime engineer initially but GL felt ‘forced to make changes’. The claimant returned to work from a brief holiday to be informed by GL that her role had changed and that SB was due to start the following week to whom she was now performing the role of ‘under manager’. In cross examination GL accepted that the role was a demotion from her original position.
On the 21st December GL and SB held a disciplinary meeting where the claimant received a verbal warning over her behaviour while working on the cash till. At this meeting GL also offered the claimant a ‘back office’ role in Killarney, which the claimant accepted without any issue. There was a reduction in salary. On 22nd December the claimant received a written warning. The salary was restructured again with a further reduction in basic pay but with an extra performance related incentive that GL hoped would bring claimant’s ‘enthusiasm back’.
In January 2010, after the claimant had worked a few days in Killarney, GL received word from the claimant’s brother that she was going on sick leave. JL, director of respondent company, gave evidence of a meeting she had with claimant in January 2010 and also how she believed the new role in Killarney would suit the claimant but accepted mistakes were made in the whole process.
Determination
Having carefully considered all of the oral and written evidence, The Tribunal finds the actions of the respondent company on 10th December 2009 were unreasonable. Fair and proper procedures were not adhered to, followed by a salary reduction, a verbal warning 10 days later followed by a written warning the following day. However the Tribunal also notes the unusual circumstances where the resignation did not take place until approximately 14 months later.
In the circumstances the Tribunal awards the claimant €10,000.00 under the Unfair Dismissals Acts 1997 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)