EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD869/2015
CLAIM OF:
Christopher Daly
-claimant
Against
Stoneen Limited T/A Johnstown House Hotel & Spa
-respondent
Under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr. L. Tobin
Mr. J. Dorney
heard this claim at Dublin on 6th July 2016
Representation:
_______________
Claimant: Mr. Steven O’Sullivan B.L. instructed by, Ms Emeria Flood, Nooney & Dowdall, Solicitors, Mary Street, Mullingar, Co Westmeath
Respondent: In Person
Background
The respondent is a Hotel and Spa who employed the claimant on a Job Bridge Scheme from the 19th of December 2013 and then on a contract of employment from the 3rd of March 2014. The claimant worked as a receptionist. The business was purchased by the respondent in July 2015.
Claimant’s Case
The claimant was forced to resign from his employment by letter of the 31st of July 2015 as a result of two incidents of ‘manhandling’. The claimant loved his employment and it was going well until the 1st incident on the 20th of March 2015. The claimant was standing at a computer at the reception desk when a supervisor (C) asked the claimant to move from the computer. The claimant said he would move when he finished off his work, at this point C lifted/pulled the claimant by the waist away from the computer. The claimant was so shocked he took his break; on his return he reported the incident to his line manager (L) and informed her that there was another member of staff (S) who witnessed the incident. The claimant’s line manager did nothing about the incident. As a result of this, the claimant attended his doctor and was prescribed anti-anxiety medication for stress caused by the situation.
The 2nd incident occurred on the 15th of May 2015. It was a very busy Friday afternoon and the claimant was at the cashbox at the back of reception finishing his work. A large sum of money had gone missing from the cashbox previously so it was important he finished counting the cash and got the money to the safe at the end of his shift. The claimant’s supervisor (S) asked him to answer the phone; the claimant said he couldn’t as he was counting the cash. S then told the claimant “I’m your supervisor, you’ll do what I tell you” and pulled the claimant by the arm to the phone. S shouted at the claimant and hurt his arm when he forcefully pulled him to the phone.
The claimant’s line manager (L) came back to reception and he told her what had occurred. The claimant said “this finishes now, he shouldn’t be pulling me around”, the claimant then left the premises. He called in sick on Saturday morning. The claimant was very upset and attended his doctor on Monday the 18th of May. The claimant got a medical certificate stating ‘work related stress’; as he was upset, stressed and anxious as a result of the incidents. As per the respondent’s grievance procedure incidents can be reported to your line manager.
On Monday the 18th of May HR (TM) emailed the claimant stating “It is my understanding that you verbally resigned from your position”. The claimant replied by email outlining the incident that had occurred and the fact that he was on sick leave.
The claimant attended the respondent’s Occupational Health Doctor. The Doctor said that the claimant was “willing and able” to meet the respondent. The claimant met with TM from HR on the 16th of June for an investigation meeting. At this meeting TM said the CCTV does not corroborate the incident; the claimant gave evidence that the camera was directed at his back so would not capture the incident. TM never followed up with the claimant after this meeting and never gave him any assurances that such an incident would not occur again. The claimant is not aware if the perpetrators were ever interviewed or if there was any type of action taken. In the circumstances, the claimant had no option but to resign, which he did by letter of 31st of July 2015.
Respondent’s Case
The respondent did not provide any evidence to the Tribunal, except one witness who informed the claimant that she took over the HR function from the 13th of July 2015, and was not in a position to give evidence in relation to the two incidents referred to above.
Determination
The respondent employer has a duty to provide a safe working environment for its employees, and fell far short of complying with this duty. The respondent was well aware of the details of the assaults, and did not deal with them adequately, or at all. An employee is entitled to expect that he will be able work in an environment free from psychical or other assault.
The Tribunal is satisfied that the claimant did not resign as a first option but that he made reasonable efforts to have the matter addressed by the respondent, which efforts, proved futile.
It is noted that the claimant met TM from the HR department on the 16th June 2015, but that TM never followed up with the claimant and never gave him any assurances that such incidents would not occur again.
The Tribunal finds it surprising that the respondent did not offer evidence from L, the claimant’s line manager, or from TM.
Having considered the uncontroverted evidence of the claimant, the Tribunal determines that the claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and awards the claimant €5,000 in compensation,
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)