EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Margaret Hodgins - Claimant UD648/2015
RP264/2015
Against
Skelly Grocery Hardware Limited - Respondent
Under
UNFAIR DISMISSALS ACTS 1977 TO 2007
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony BL
Members: Mr. P. Pierson
Ms. H. Murphy
heard this case in Ennis on 28th September 2016 and Galway on 6th July 2017.
Representation:
Claimant: Mr. Colman Sherry, Solicitor, The Square, Gort, Co Galway
Respondent: Ms. Deirdre Browne BL instructed by:
Gearoid Geraghty & Company Solicitors, Society Street, Ballinasloe, Co. Galway
The determination of the Tribunal was as follows:-
This was a constructive dismissal case.
Background
The respondent owns a family grocery and hardware business in a rural area in the west of the country. MD runs the business, which was started as a grocery shop by his grandfather in 1940 and over the years the business expanded to selling animal feed and later agri-hardware. The claimant was looking for a job and MD employed her. She commenced with the respondent on a full-time basis in November 2005 working in the shop. Another employee (AE) commenced employment with the respondent in 2008/9. When MD’s sister (SR) was made redundant in 2009 she joined the respondent’s staff working full-time in the shop, the claimant moved to the hardware section and worked on the computer and AE worked on the yard. After her second pregnancy the claimant was feeling down and was not returning to work but MD contacted her and they agreed that she would return to work on a four day week.
In 2012 business was financially tight causing MD to reduce AE to a three-day week. AE was unhappy about this as he had helped out MD, working overtime, when the respondent took over a fuel centre. AE made MD aware of his dissatisfaction. Business improved three months later and his hours were increased to four days a week.
Claimant’s Case
The claimant’s position was that her relationship with AE was “okay at first” but he blamed her for his being put on a three-day week in 2012 and was abusive to her, calling her names and threatening her with the forklift. The claimant told MD about it and he told her to take a week off. On her return AE would not speak to her. AE continued to hassle her. The claimant told MD and he promised to sort it but he did not. AE continued to blame her for his hours being reduced and for everything. If AE was drinking the previous night he would take the back roads to work next day to avoid the gardai and would be in a bad mood at work the next day. While MD had told her more than once that he would sort out her difficulties with AE, he never mentioned a meeting, she was not given a grievance procedure and he did not sort her difficulties with AE.
In early December 2014 MD spoke to her about under-pricing feeds and she told him that she had only given two or three discounts and had passed those by him. In cross-examination the claimant explained that one day in the yard MD spoke about the importance of margins and how he could not stay in business if discount was being given. She had made an error of 100kgs of animal feed in the account of a customer but MD accepted this; he said mistakes happen and that he makes the most mistakes.
A row started between AE and her in the shop on 24 December. She had brought sweets to work for the customers. There were words between them in front of a customer and AE commented to the customer, “Mind yourself with the Rottweiler”. She felt humiliated. The customer who was present pulled AE aside about the remark.
AE phoned her at home on 24 December 2014 and told her she was being watched on the CCTV for selling animal feed to farmers at a discount, that she had been seen selling at a discount to customer X and that SR had seen her selling at a discount and had told MD. She hung up on AE. He phoned back several times but she did not answer his calls. She had enough and she sat down and wrote a letter to MD handing in her notice and asking that her P45 be forwarded to her. She was bullied out of her job. MD knew what was going on and had done nothing to resolve her issues with AE. She was afraid of AE and both MD and SR knew that. AE bullied them as well.
On 27 December the claimant called into the shop and gave MD the envelope containing her letter of resignation and told him to read it later. MD phoned her but she did not take the call. She sent him a text that evening to the effect that she would not return to work and told him that she enjoyed her days in the employment and that it was time for a change.
On 12th January 2015 MD phoned her and asked her return to her job. She told him AE bullied her, him and SR and that she would go back when he sorted it. Her evidence to the Tribunal was that MD told her he wanted nothing to do with it. However, in cross-examination the claimant told the Tribunal that MD told her he would ring her back in two or three days but he did not.
SR phoned her on 20 January 2015. SR told the claimant that she knew nothing about her problems with AE. The claimant asked her why she did not stand up to AE. She was very emotional during the phone call.
On 23/24 January the claimant phoned MD and asked if he had done anything about AE and he asked her to remind him of the matter as he could not remember. When she reminded him he told her it had nothing to do with him and to sort it out with AE herself. She phoned AE about six times in late January but he did not answer her. Then she sent him a text telling him she was very upset at what he had done to her. He did not reply.
The claimant went to her doctor on 23rd January 2015 and was put on medication; she also had reflexology and acupuncture treatments. She does not go out anymore, she has no confidence in herself, her sleep is not good and she was very upset about the upcoming case before the Tribunal. Although her son was now playing senior hurling she never goes to a match. Regarding the 1916 celebrations she “let on” that a relative was ill. She felt ashamed. She rang AE many times but he would not reply. She texted him subsequently but again he did not reply.
In cross-examination the claimant agreed they all had worked well together, that there was give and take between them and that she brought AE breakfast rolls. She agreed that there was banter and lots of rough talk/bad language between AE and herself. The claimant told the Tribunal that (on occasions) she worked right through lunch time to help AE rather than take her break. All was good, she facilitated, she gave and he took. The claimant denied giving discounts as alleged because she wanted to be popular. She denied that she engaged in horseplay with AE. AE had told her to keep his name out of it and to say that she left because her father was sick.
As late as 7th July 2015 the respondent asked her not to take the case to court (the Tribunal). She asked MD to resolve her issue as there was only four of them in the business. In reply to a question from her MD admitted that he was afraid of AE. She just wanted her name cleared and to get on with her life. MD told her that AE would not write an apology letter.
Respondent’s Case
MD’s position was that the staff got on very well together and there was a good atmosphere in the workplace. The claimant’s child came to play with his, she and SR socialised together and birthday presents were exchanged. There was a good relationship between the claimant and AE. The claimant would bring AE a breakfast roll in the morning and they were like an old married couple who would occasionally argue and not talk for a day or two. There was no sense of bullying by AE. MD often gave AE his van and there was no way he would have done so had AE been drinking and driving.
In early December he reminded his staff that margins were necessary and everybody needed to be singing from the same hymn sheet. The claimant asked on numerous occasions who had told him about giving discounts but things moved on and it was not mentioned again.
On Christmas eve MD paid the claimant and wished her a happy Christmas. On 27th December the claimant visited the shop and handed him an envelope. He read the contents and phoned her but she did not answer her phone. He then received a text message from her saying that she was gone and “just wanted a quiet life”. He replied stating that he was disappointed. AE told him that some words had been exchanged between them on Christmas eve but nothing more than usual.
On 12th January he received a text message from the claimant asking him to ring her and when he did she alleged that AE had been bullying her. She was crying. MD was taken aback. This was the first time he had heard anything about bullying and he did not know how to handle it. He asked if she would return to work but she refused.
MD made enquiries of AE and SR and was told that there was banter/rough talk and some horseplay at work and the claimant could give as good as she got. AE told him there had been words between himself and the claimant on 24 December 2014 in the shop relating to the sweets. AE told him that the claimant often phoned him at home after working hours and his partner became annoyed so he had to ask the claimant to stop phoning him at home. She had sent him a Valentine card and things like that. SR told him she felt the claimant was keen on AE. MD found no evidence of bullying and concluded there was none but he did not know what to do so he sat on it.
Subsequent to receiving a letter form the claimant’s solicitor MD called to her home and they had a lengthy discussion about her problem. She wanted an apology from AE. MD advised his solicitor of this and that was as far as it got. MD felt he was an approachable person. If the claimant had told him of any issues before handing in her resignation he would have taken whatever action necessary to sort it out. The bullying allegation came from nowhere after she had left the employment.
Under cross examination MD’s evidence was that he was not afraid of AE. The claimant was never replaced. He found no evidence that the claimant was driven out of her job. There was no grievance procedure in place and no notes were taken of any of the conversations.
SR’s evidence was that and the claimant had a good relationship, they socialized together, went to concerts and matches together and exchanged birthday presents; the claimant was like one of the family. There was always banter between the staff. She never saw AE bullying the claimant and she believes that the claimant would have told her had there been bullying. There had been occasional words between AE and the claimant, just like in any workplace.
AE’s evidence was that he and the claimant got on very well. The claimant would be on the computer and he would mainly be in the yard. They often had heart to heart conversations. The claimant brought AE a breakfast roll and pastry most nornings. They would have their disagreements but nothing unusual. On one occasion an accusation was made that he had hit her cousin’s jeep with the forklift but on checking the CCTV, MD discovered that the allegation was unfounded. On that occasion AE told the claimant that she should not have become involved in it and she broke down crying. There was banter and sometimes it was a bit over the top and vulgar. He had to ask her to stop phoning his home after business hours as it annoyed his partner. AE denied driving the forklift at the claimant
On the final day of her employment the claimant came to work with two boxes of sweets to give to customers and in the presence of customer(s), she said, referring to AE, “That mean f….er wouldn’t give you anything” . He retorted that it is not up to him as he was not the boss and told her it would be more in her line to keep “a tight fist” on the business. He was having a dig at her and he knew that it was not nice. He tried to phone her a number of times that evening but she did not answer. Her allegations against him were false, he was never aggressive towards her or MD and certainly he had never bullied her.
Determination:
This is a case of constructive dismissal and accordingly, the burden of proof rests on the claimant to show that because of the employer’s conduct either she was entitled to leave the employment or that it was reasonable for her to do so. .
There was a serious conflict between the parties’ evidence on the core issues in this case viz whether AE had bullied the claimant and, if he had, whether the claimant had reported it to MD so that he could deal with it.
The Tribunal, on the balance of probability, finds that there was a good relationship in the workplace, that AE had not engaged in bullying the claimant and that MD had not received any complaints of bullying from the claimant prior to her resignation.
In the circumstances the Tribunal unanimously finds that the claimant did not discharge the onus of proof placed upon her under the Acts to establish that it was reasonable for to resign from her employment. Accordingly, the claim for constructive dismissal under the Unfair Dismissals Acts, 1977 to 2007 fails.
As there was no evidence of a redundancy situation in the respondent’s business and further as there was no evidence of a dismissal by the respondent, the appeal under the Redundancy Payments Acts 1967 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)