EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Dorota Wandoch - Claimant UD897/15
Against
Aldi Stores (Ireland) Limited T/A Aldi - Respondent
Under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr J. Hennessy
Mr J. Flavin
heard this claim at Limerick on 27th July 2016 and 12th October 2016 and 17th January 2017 and 5th April 2017
Representation:
Claimant: Mr. Tiernan Lowey BL instructed by:
Ms Sonya Morrissy Murphy, Keating Connolly Sellors, Solicitors
6/7 Glentworth Street, Limerick
Respondent: Ms. Niamh Hyland SC (17th of January 2017)
Mr Frank Drumm BL
instructed by: Vincent & Beatty, Solicitors, 67/68 Fitzwilliam Square, Dublin 2
The determination of the Tribunal was as follows:-
This being a case of constructive dismissal it fell to the claimant to give evidence first.
It should be noted all letters, minutes of meetings, handbooks and the claimant’s contract of employment referred to during this hearing was opened to the Tribunal.
Background:
The respondent is a retail outlet with many stores throughout the country. The claimant was employed as a Store Assistant and worked in Store C. She alleges she was undermined, bullied and subjected to general mistreatment by her Manager KC. Despite efforts being made through the alert confidential help line and formalising her grievance the respondent failed to address her concerns which ultimately led to her terminating her employment.
The respondent’s case is that it came to a decision that the claimant should be redeployed on a temporary basis for her own health and safety in either of the respondent’s neighbouring stores pending the outcome of an investigation into the claimant’s grievances. The claimant refused to return to work but wished to return to the store where she had been working. The claimant failed to exhaust the respondent’s internal grievance procedures.
Claimant’s Case:
AP worked for the respondent in the role of Store Assistant for just over seven years but left her employment due to a back injury in 2014. KC was Store Manager during her tenure. KC was very strict and one never knew what to expect from her. KC often ignored staff and was unfair in her dealings with them. Two employees working with the witness brought complaints to management in relation to their treatment by KC.
The witness believed that the claimant was treated the worst in the store. The Store Manager said that the claimant was too stupid to be on the floor and was given the hardest work to carry out. There are set time limits for stocking shelves. Fruit and vegetables carry code numbers 1 -99 and staff had to memorise these numbers. The claimant had been sent home by KC on one occasion and told not to come back until she knew all the codes.
Staff had difficulties in relation to taking annual leave. If employees reported KC they were treated very differently.
The claimant was a strong person and if she was not treated right she voiced her concerns.
The witness never raised any grievances with the respondent.
LC commenced employment as an Assistant Manager in August 2010. His probationary period did not go well and he was let go. In March 2011 he applied for and was successful in obtaining the role of Store Assistant. In June 2011 he was promoted to Deputy Manager.
Pallets are brought into the warehouse. To unload pallets in a safe way it can take in the region of 15 to 25 mins. He was constantly being told by DC, Area Manager that KC was one of the best store managers and that her opinion was more important.
He took some time off in April 2015 due to illness of a family member. KC was annoyed that she had to change the roster at that time. KC subjected him to bullying and harassment. He raised a grievance informally and following a meeting some action points were agreed and he agreed he would ‘bury the hatchet’.
The witness was not permitted to become too friendly with staff. KC picked on the claimant. On one occasion having viewed CCTV footage of the claimant working the witness was instructed by KC to help the claimant as she was too slow carrying out her duties. The witness viewed the claimant as one of the best. Whenever an incident occurred in the Store an employee would be branded ‘victim of the week’.
The roster and schedule of work are put up in the Canteen and on the Warehouse door and staff names are assigned to certain duties. Once the week is over schedules are binned.
KC was very offensive towards staff.
The witness tendered his resignation on 20th December 2015. He had been subjected to bullying and harassment by KC.
BK, Store Assistant gave evidence. She was hired to work in Store C but her training was carried out in Store R over a two month period. She found KC to be very difficult. When the witness asked to book holidays from a Thursday to a Thursday KC told her that this was not permitted. Instead she was told she must book holidays Monday to Monday. She raised this issue with B, Area Manager who asked her to leave it with him but he never got back to her.
If the witness ever raised an issue with KC her hours were reduced and she was given the toughest task in the Store. She could then be branded victim of the week. KC called her stupid and clicked her fingers and she felt KC did not like her. It all depended on her mood on the day.
The witness was aware that the claimant had not received any training on the tills but that she had to work on the shop floor. Removing produce from the pallets was the least desirable task in the Store and the claimant was tasked with this job regularly. While the witness’s contract was for a 20 hour week she normally worked 30/40 hrs per week. If she complained her hours were reduced back down to 20 hours per week.
The witness saw no point in raising a formal grievance.
In 2010 she was transferred to Store S in Dublin and worked there until she tendered her resignation in March 2015.
DH commenced employment in 2006. His role was that of Deputy Manager and he reported to KC. He found KC to be a tough manager and found that she departed from the respondent’s techniques. He did not like her style of work. KC spoke down to people and she was constantly telling staff they were useless and slow.
When the claimant commenced employment the witness was Deputy Manager and he was impressed with her work ethic. She often did more than was expected of her. KC seemed to have an instant dislike at the outset of the claimant’s employment. KC was constantly following the claimant in the Store and monitoring her.
He did not want to rock the boat and interfere with his own promotion prospects and did not lodge a formal grievance. He had no faith in the respondent’s procedures. He suffered from work related stress and depression and commenced a period of sick leave in June 2015.
While his contract of employment stated 20 hours he was told at interview stage that he would get at least 30 hours.
The witness had been given an ultimatum that if he wanted promotion he had to leave the store he had been currently working in. He moved to Store N.
AN worked as a Stores Assistant from July 2008 to December 2014. KC was always complaining about his work. She called him a lazy bastard and she constantly found problems and faults with his work. Sometimes when KC was not happy with his work as a punishment his hours were reduced to 20 hours per week and sometimes reduced even further.
He often witnessed KC in conversation with the claimant and then immediately afterwards saw the claimant crying. He asked KC if he could help the claimant or swop tasks with her. KC treated the claimant differently to other staff. The claimant was constantly being assigned the toughest tasks. She did her best.
The claimant gave evidence. She commenced employment on 22nd September 2008 and after two weeks she broke her arm. She returned to work in Store C. She was over the moon. Her contract of employment was for 20 hours per week. She was assigned different duties. She was not shown how to use the pallet truck.
Staff were rotated on tills, deliveries, produce and chilled food. She was not trained on the till.
KC was constantly finding fault with her.
On an occasion when the Deputy Manager assigned her to the bread section KC told the claimant that she was always looking for the easiest job. The claimant told KC to stop bullying her.
On an occasion in early 2010 when the claimant had finished a delivery she was told she had missed some items she was taken to KC’s office and told she was lazy.
She was constantly being bullied and harassed by KC. KC was constantly telling her she was useless and clicking her fingers at her and whistling at her.
The witness’s daughter had a solo part in a concert on 18th December 2014. As the claimant was rostered to work that evening one of her colleagues was agreeable to swop his shift. As KC was on holidays DC, Regional Manager gave her permission to swop her shift with R. The claimant worked the morning shift from 9 am to 3 pm on 18th December 2014. When her shift ended KC, who had returned from holidays, called her into her office and told her that she should not deal behind her back with DC as he had no authority to change the roster. KC also said that R had come to work and was unhappy as he had to work different hours.
On 23rd December 2014 the claimant telephoned the company’s alert line but remained anonymous. She complained about KC’s treatment of her. She rang the alert line again on 29th December 2014 but this time she gave her name and the store number. During the course of her conversation she asked that DC be excluded.
In October 2014 the claimant had asked if she could be rostered for the morning shift on 30th December 2014 and for an annual leave day on 31st December 2014. While she was granted annual leave on 31st December 2014 she was assigned the 12 noon to 8 pm shift on 30th December 2014.
On Christmas Eve the store was open from 7 am to 7.15 pm but she did not finish till 8.40 pm. She had sought permission to ring her husband and tell him not to collect her at 8 pm but KC refused her permission to ring him. As a result her husband and children had to wait till 20.40 to finish her shift.
On 7th January 2015 DC met with the claimant and briefly discussed her grievance. A grievance meeting was arranged for 10th January 2015. The allegations were that KC was bullying and harassing employees, KC being disrespectful and offensive towards staff, KC threatening to dismiss staff and that KC was not approachable. A accompanied the claimant to the meeting. The claimant had been assured that a full investigation would be carried out.
By letter dated 11th February 2015 the claimant wrote to DC amending the terms of her grievance. She indicated that her health had been severely affected and she had to obtain medical advice and medical treatment. In that letter the claimant also asked that five individuals be interviewed.
By letter dated 27th February 2015 DC required the claimant to attend the company doctor and said that he was redeploying the claimant to another store R in the context of her health and safety issues that she raised. DC also asked the claimant to list the issues in relation to her grievance in writing.
The claimant had not asked for a transfer. She commenced a period of sick leave on 2nd March 2015. By letter dated 3rd March 2015 she wrote to DC and confirmed that she would attend the company doctor but was not agreeable to be redeployed to Store R.
She attended the company doctor on 4th March 2015.
On 19th March 2015 the claimant received the minutes of the meeting of 10th January 2015. The next day the claimant wrote to DC and expressed her wish to return to work at the earliest opportunity when she was fit to do so.
DC stated in his letter dated 9th April 2015 that the grievance investigation was on hold until the claimant set out in writing her grievance in full.
On 30th April 2015 the claimant made every effort to return to work. She contacted the store directly looking for details of her roster. She was told she was not on the roster.
The respondent arranged for the claimant to attend a medical examination with the company’s doctor on 15th May 2015 to ensure that the claimant was fit to return to work. The medical practitioner recommended that the claimant was medically fit to return to work and carry out the full range of duties with all team members in any store.
DC wrote to the claimant on 29 May 2015 and indicated that he looked forward to her return to work in Store R on Monday 8th June 2015.
The claimant wrote to DC on 11th June 2015. She had sought how she might safely return to work in her current place of employment. She had made it clear from the outset that any proposed relocation would not be a solution to the problem. She stated that she had no option but to consider herself constructively dismissed and resigned from her position. She asked to be furnished with her P45.
On 17th June 2015 DC wrote to the claimant and enquired if the claimant did not wish to return to work in Store R a position would be made available to her in a store in Co. Tipperary.
The claimant never asked for a transfer and the respondent wanted to move her without her agreement.
The claimant had been trained as a bookkeeper in the own country and she tried to secure bookkeeping employment in Ireland. English proved a problem to her.
Under cross-examination and on numerous occasions the claimant stated that she felt any move from her original store – C – would be a punishment to her. She had been deemed medically fit to work in any store and felt she should return to work in store C with KC working there or she would be “constantly running”.
The claimant stated that DC should not have been nominated to carry out the investigation into her grievance as she had specifically said in her second call to the alert line that he should be excluded.
When asked by a member of the Tribunal if DC, or any one, had advised her of the time frame for the investigation into her grievance to conclude, she replied no.
MC, a former colleague, commenced employment in the C store in September 2008. MC said KC was “not a very nice person”. On occasions KC would not greet her or even call her by name. KC made her feel “inferior”. KC disliked the claimant and humiliated her giving her the toughest tasks to carry out.
MC agreed, when it was put to her, that the respondent had agreed to her changing her work pattern in 2011 to part-time hours and to an eight month period of absence in order for her to study.
Respondent’s Case:
DC, the Area Manager for four stores including Store C and Store R gave detailed evidence of his employment history prior to the commencement of his employment with the respondent in February 2009. Store C was the third busiest of the respondent’s 128 stores. As Area Manager DC’s role also including duties as the Personnel Manager for his stores as the respondent has no Human Resource department. DC explained the process of the advertising of staff, hiring, training and the induction of new employees. All employees, including the claimant, were given a contract of employment which stated they could be employed “in any” of the company’s trading stores.
DC told the Tribunal that in the eight years he had been employed with the respondent he had dealt with six grievances, including the claimants and two of her colleagues in Store C.
In December 2014 the claimant approached him and requested a shift swap with a colleague. The claimant had asked him for authorisation in KC’s absence. DC checked the roster and approved the change. The claimant told him on this occasion that KC would not be happy she had spoken to him in her absence but if any trouble arose she would deal with it herself.
Following this event an anonymous grievance was lodged on the alert line concerning KC. DC told the Tribunal that he decided to mention it to the claimant as she was the only person who had mentioned there could be an issue with KC. He approached the claimant and told her of the anonymous call on the alert line. The claimant “volunteered” that she had made the call. DC wrote to the claimant and requested that she put her grievances in writing. They met on the 10th of January 2015 to discuss the matter. The claimant became very upset and said she had “suffered an injury as a result of KC’s behaviour”. DC said he would investigate further but did not give the claimant a time frame for when the investigation would conclude. DC explained that two other colleagues had made complaints at the same time. He decided he would interview all the 37 staff in Store C.
DC told the Tribunal that it was a very serious situation and he felt it would be advisable for the claimant to move store location while the investigation was ongoing. He requested a detailed list from the claimant of her grievances.
In February 2015 the claimant wrote to DC amending the terms of her grievance and outlining bullying and harassment. DC replied requesting the claimant attend the company doctor.
DC again met the claimant on the 1st of March 2015 to discuss her grievance and the talk about the suggestion he had made in his letter for the claimant to move to Store R. The claimant said she felt a transfer would be a form of punishment. She was very upset. DC explained that this move would be of a temporary nature until the grievance procedure concluded.
The following day the claimant was absent on sick leave. She attended the company doctor on the 4th of March 2015.
Correspondence crossed between the claimant and DC. DC told the Tribunal that he never received the full list of the claimant’s grievances that he had requested. The grievance procedure could not be concluded. The claimant did suggest KC be moved in her stead but DC said this was impractical. She also suggested being chaperoned when dealing with KC but that was also unworkable.
On the 11th of June 2015 the claimant submitted a letter stating she deemed herself constructively dismissed.
DC replied on the 17th of June stating the respondent did not accept her resignation and suggested a move to their branch in Nenagh, pending the conclusion of the grievance procedure. DC requested to meet the claimant again.
Correspondence again crossed between the parties, including their respective solicitors. DC told the Tribunal that he attempted to meet the claimant on numerous occasions but to no avail.
On the 18th of September 2015 the respondent’s solicitor wrote to the claimant to arrange a fourth meeting with the claimant. She was also informed her position would be held for her for a further period of 14 days only. The claimant did not attend any meetings or return to work.
Under cross examination DC told the Tribunal that there were six grievances attached to store C, four involved KC but none were upheld except that she did click her fingers and whistle at the claimant. He stated that he had received detailed training in Human Resources but not specifically in bullying and harassment, the respondent’s grievance procedure was how it was handled. His request for her to go to another store was for health and safety reasons and was not to punish of embarrass her in any way.
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 allegations, and did not deal with them adequately, for a considerable period of time of over six months.
The Tribunal is satisfied that the claimant did not resign as a first option but that she made reasonable efforts to have the matter addressed by the respondent, which efforts, proved futile.
It is noted that the claimant first complaint was on the alert line on 24th December 2014.
The Tribunal finds it surprising that the respondent did not offer evidence from KC, the subject of the allegations and the claimant’s manager.
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 €22,068.00 in compensation.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)