EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD902/2015
CLAIM(S) OF:
Louise O'Connor
-claimant
against
Sugardolls Nail Bar And Beauty Limited
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr D. Hayes B.L.
Members: Mr J. Horan
Mr J. Flannery
heard this claim at Dublin on 16th June 2016
Representation:
Claimant: In person
Respondent: Ms Jennifer Murphy, Carley & Connellan, Solicitors, 10 Anglesea Street, Dublin 2
The determination of the Tribunal was as follows:-
The respondent company is owned by JD and LS and has a number of nail bars and beauty salons. The claimant was employed as a beauty therapist in a salon in the Liffey Valley shopping centre from November 2013 to June 2015. She resigned her employment and made a claim that she had been constructively dismissed.
The claimant gave evidence about a number of difficulties that she experienced in the course of her employment. She had been the subject of disciplinary sanction on a number of occasions, once for smoking in a prohibited area and on a second occasion for not keeping the salon sufficiently clean. On the first occasion she said that a warning was simply dropped into her at her workplace. On the second occasion she was taken, without notice, to a public seating area attached to a nearby food court by LS. She said that she was shouted at by LS and, as she tried to explain that it was difficult to keep the salon clean when it was very busy, he told her that she should leave if she was unhappy. She was given a further written warning to sign and return. When she was with a client the following day LS telephoned her and told her to meet him at the food court when she had finished with her client. There was a discussion about why she would not sign the warning and return it to him. She said that LS was again shouting at her and that she was crying. She said that of the five employees in the salon, only two of them were given warnings in relation to cleaning.
She also gave evidence about the time allowed to her for lunch being reduced from one hour to half-an-hour on the salon bookings system. Each time she noticed she changed her lunch back to an hour only to find it reverting to the shorter period. Just before lunchtime on that particular day LS came and again called her to the public food court area to discuss this matter with her.
On another day she said that LS monitored her absence during lunch on the salon’s CCTV system and texted her to tell her to get back to work. The following day LS, JD and M (her manager) came into the shop and told the claimant’s colleague to take a break. LS did the talking and told her that she was not allowed to take one hour for lunch. She felt intimidated being dealt with on her own by three members of management. JD told the Tribunal that the CCTV was not used to monitor employees but was for crime-prevention purposes. She said that other employees had reported the claimant for excessive breaks, hence the text. She said that the claimant had been shouting at her and that she felt intimidated by the claimant rather than vice versa. JD said that problems with the claimant only began to arise around the end of April when KOT, her previous manager, left the respondent’s employment. LS also told the Tribunal that the CCTV was there in case there were any problems in the shop and that they were not for carrying out surveillance. He said that the cameras were clearly visible and in no way covert. He did accept that he could access the CCTV through his phone. He said that the claimant never raised any issue about CCTV with him.
Towards the end of April 2015 she was not well as she was opening up the salon at about 9am and asked could she go home. Her manager came in about 10.45am to relieve her and allow her go home. In the meantime she had made a number of visits to the toilet in a nearby café. LS phoned to ask why she kept leaving. She was told to produce a medical certificate. LS said that he had telephoned to see why the salon was not open because he had been telephoned by employees of the shopping centre to tell him that his salon was closed.
The claimant told the Tribunal that by May she had got to the stage where she was nearly afraid to go into work. Her doctor signed her off work due to work-related stress and anxiety. This certificate was dated 8th May. On 12th May JD wrote to her and asked the claimant to meet either JD or SG, a HR consultant retained by the respondent, to discuss her well-being and to consider how to reduce or eliminate any stress being caused by her working environment. She agreed to meet SG on 22nd May and they discussed a number of her complaints. She told the Tribunal that she raised the issues of being brought to a public area to be spoken to; not being allowed a witness; LS’s use of CCTV; and only being allowed half-an-hour for lunch. SG undertook to speak to LS and JD and come back to her. He then emailed her on 23rd May and told her that he had discussed her issues with LS and JD. He also told her that the owners required some time to consider what had been said and he was going to be out of the country until 5th June and that he would be in contact on his return.
SG got in touch with the claimant again on 9th June. He told her that her first warning had had a lifespan of six months which had expired and he reassured her that it was no longer on her file. He told her that he had discussed the second warning with the owners and that it had been downgraded to a verbal warning and that it would only remain on file for a period of six months from when it had been initially issued. In respect of her breaks he told her that they were not matters for either LS or JD and that she should speak to her manager about them. He told her that should she still have issues after having spoken to her manager she could come back to him and he would look into it. He told her that in future she would be given twenty four hours notice of any disciplinary meeting and would be allowed to have a witness present. He also told her that, as LS was one of the owners, it was not feasible for her to have no dealings with him whatsoever.
SG did not address the issue of CCTV in his reply. He told the Tribunal that it was not raised as an issue during his meeting with the claimant. The Tribunal accepts his evidence in this regard. The Tribunal notes that in her subsequent reply to SG, she said that she “would also like to bring up the use of cameras in the shop…” which does tend to suggest that it had not previously been brought up.
At the conclusion of his email, SG said that he hoped that the claimant’s issues had been addressed but that she should contact him if not. The claimant then sent another email to SG on 15th June in which she raised further issues about the warnings that had been given and the manner in which her disciplinary meeting with LS had been conducted. She also raised the issue of the use of CCTV and how she felt that she was being constantly monitored and her privacy was being invaded. She wrote as follows:
“While I am at work, I feel I am constantly being monitored by CCTV which is an invasion of privacy. I have been embarrassed and feel my employment at […] is untenable due to the way this has been handled. I therefore am forced to officially tender my resignation to you via this email. I trust this will reach [LS]/[JD] in due course and my P45 and my holiday pay I am due will be sent to me….”
It was put to the claimant in cross-examination that she had really resigned to set up her own beauty salon with KOT. The claimant denied planning her own business while still working for the respondent. A CRO registration of business name form was produced. It had been signed by the claimant and KOT and was date-stamped 11th June 2015 by the CRO. It stated that the business name had been adopted on 30th April 2015. The claimant said that they had backdated that date so as to speed the process up. The claimant accepted that this business name was registered four days before her resignation. She also said that premises had been secured on 11th June and that they had received the keys on 13th June. Screenshots from the Facebook page of her new business were also produced and they showed it as having been active from 10th June and that a logo for the business was in use from 11th June. It is clear that the claimant’s new business was planned since no later than 10th June 2015. However, the claimant did sign an official form suggesting that such plans were in place from no later than 30th April.
In a claim for unfair dismissal, a claimant must satisfy the Tribunal that the conduct of her employer left her no option but to resign. In doing so, she must act fairly towards her employer, just as in a conventional dismissal, an employer must act fairly in dismissing the employee. In practice that will usually involve the aggrieved employee participating in a grievance procedure, informing her employer of her grievance and allowing the employer a reasonable opportunity to investigate and, if necessary, remedy any grievance. It goes without saying, of course, that any such grievance must be well founded.
In this case it was suggested to the claimant that she had not invoked the respondent’s grievance procedure. She indicated that there was no applicable grievance because it had been incorporated into a then-expired written contract. Notwithstanding either position, the reality was that the respondent had engaged SG to assist them in resolving the claimant’s issues and that the claimant had engaged with him. He met the claimant and discussed with the owners the issues that the claimant had raised with him. Having set out the progress that he had made, he told the claimant to come back to him if she had outstanding issues. Rather than engage further with SG, the claimant raised a significant new issue and promptly resigned. The claimant had engaged with the respondent’s representative in a grievance resolution process and she did not give it a chance to work. The Tribunal does not accept her explanation that she had already gone to SG and that he had had no answers. In the circumstances, the Tribunal is satisfied that the claimant had raised a grievance and that she was not reasonable in her failure to give the grievance procedure an opportunity for success. It is also noteworthy that KOT, the claimant’s business partner, left the respondent’s employment around the time that the new business was envisaged and the claimant left around the time that their new venture commenced business. The Tribunal is not satisfied that this is a case where the bar for constructive dismissal has been met.
In the circumstances this claim under the Unfair Dismissals Acts, 1977 to 2007 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)