FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : BRITESAVERS LIMITED - AND - QIU ZHONG (REPRESENTED BY PATRICK P O' SULLIVAN SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer's Decision.
BACKGROUND:
2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court on 26th October 2016 in accordance with Section 8A of the Unfair Dismissals Act, 1977 to 2015. A Labour Court hearing took place on 26th April 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Ms Qiu Zhong against the Decision of an Adjudication Officer ADJ-00000899, CA-00003959-001 under the Unfair Dismissals Acts 1977 to 2015 (the Acts). In this Determination the parties are referred to as they were at first instance, hence Ms Zhong is referred to as ‘the Complainant’ and her former employer, Britesavers Limited, is referred to as ‘the Respondent’.
The Adjudication Officer found that the Complainant had not been dismissed from her employment and accordingly held that she was not unfairly dismissed.
The complaint was referred by the Complainant to the WRC on 7thDecember 2015. The appeal came before the Court on 26thApril 2017.
Background
Dismissal is in dispute in this case. The Complainant, who is a Chinese national, commenced her employment as a Shop Assistant with the Respondent, a retail convenience store operator, on 1stNovember 2007. The Complainant worked at various retail locations for the Respondent throughout her employment. The Complainant’s employment terminated with effect from 10thNovember 2015, at which time she had been working at the Respondent’s East Point Business Park outlet for the preceding three years. At the time of the termination of her employment, the Complainant was earning approximately €370.00 gross for a 40-hour week.
Mr Kennedy, B. L. instructed by Patrick P. O’Sullivan Solicitors submitted the case on behalf of the Complainant. The Respondent’s case was presented by Mr Tom Jones, Managing Director of the Respondent.
The uncontested facts of the case are as follows:-
On the afternoon of 10thNovember 2015 the Respondent’s shop manager at the East Point Business Park outlet received a complaint from a regular customer that one of the Respondent’s shop assistants had on a number of occasions pressed the ‘no-sale’ button on the cash register machine whilst making sales to her. The customer told the manager that she had previously worked in retail and she was aware that utilising the ‘no-sale’ button when a sale was actually being transacted was not correct with the implication that a person so doing could be engaging in a dishonest activity. When asked to describe the particular shop assistant the customer identified the Complainant. The customer requested that the manager investigate the matter and advise her of the outcome.
When the Managing Director and owner of the Respondent arrived at the premises a short time later for an unrelated pre-arranged meeting, the manager informed him what had been reported by the customer. The Complainant was on duty at that time and the Managing Director decided to meet with her in relation to the complaint. Shortly thereafter a meeting was convened by the Managing Director with the Complainant at approximately 2.30pm. The meeting took place in the retail outlet’s seated café public area. As well as the Complainant, the Managing Director requested three other staff to attend the meeting, namely: the Shop Manager who had received the complaint; the Manging Director’s wife who had responsibility for personnel matters for the Respondent; and the Delicatessen Manager for the outlet.
At the meeting the Complainant was informed by the Managing Director that a complaint had been made by a customer about her. The Managing Director asked the shop manager to outline the details of the complaint to the Complainant, which she did. In the course of her responses at the meeting the Complainant became upset and emotional and denied that she had engaged in the activity complained about. The meeting concluded shortly thereafter, lasting approximately five minutes overall. At the conclusion of the meeting the Managing Director, his wife and the shop manager left the café seated area of the shop and proceeded about their business. The Complainant did not return to her shift and instead collected her personal items and belongings from her locker to leave the premises. On her way out she approached the shop manager who was behind the counter serving customers and began to talk to her about what had transpired at the meeting. The Shop Manager asked the Complainant to come outside the shop to continue the discussion. An exchange took place outside the shop that was somewhat heated and concluded with the shop manager returning inside to the shop with the Complainant remaining in the car park area of the premises. As the Complainant did not complete her shift the shop manager asked another employee to cover the Complainant’s hours.
Whilst in the car park, the Complainant sent the following two text messages simultaneously to the Managing Director, his wife and the Shop Manager:
- “you wronged me. Don’t want to keep me in this work. Tell me directly. Why use this reason to bully me a Chinese. Why always let me feel aggrieved. My English is not good. Explain don’t understand. You are bully it’s unfair to me”
“I just come back for three weeks. Till I am not do before why is my. Some people you don’t deal with. Ran to mistrust me. Bully me Chinese. Very unfair to me.”
Sometime later, after the shop manager had finished her shift and had left the shop, the Complainant went back in to the shop and spoke with some colleagues. With the assistance of a particular colleague she drafted and sent the following third text message to the same three recipients:
- “My English was not good. When I wanted to talk to you, but I think the situation was not fair. I understand your position. But you should have given me some credit and trust me. My reaction wasn’t the best but I was so angry. I am not do anything I apologize for my attitude. Hope you understand”
None of the three text messages were responded to by the three recipients. The Complainant did not attend for work with the Respondent thereafter and some days later an employee of the Respondent contacted her on the Respondent’s behalf and requested her to return the set of keys that she had for the Respondent’s premises.
Thereafter there was no direct contact between the Complainant and the Respondent until the Complainant had a text message exchange with the shop manager on 22ndNovember 2015, as follows:
- Complainant:“I v been told you say I did it, which is a lie. How can you do this to me. I am not taking this anymore. You will see.”
Shop Manager:“ did what ??? the only thing u said to me is that you pressed the NS button because it was too busy and that you rang in later…”
Complainant:“I think U Don’t understand what I say in that day. I didn’t do anything. This is last time I say to u”
On the following day, 27thNovember 2015, the Complainant received a text message from an employee of the Respondent informing her that there was a document, which transpired to be her P45, for her to collect at the Respondent’s Merrion Row premises. The P45, which was generated by a third party payroll service provider company retained by the Respondent, reflected an employment cessation date of 22ndNovember 2015.
The Complainant subsequently received a letter from the Managing Director dated 27thNovember 2015 in reply to the Complainant’s letter of 26thNovember 2015. The letter stated as follows:
- “Dear Qiu,
I refer to your letter of 26thNovember 2015 in relation to the status of your employment and wish to clarify the following:-
A complaint was made by a member of the public that you were seen ringing in a No Sale instead of ringing in the amount of the transaction. It was up to the Manager Catherine McNamee and myself to investigate the allegation and we asked yourself for an explanation of the events.
During a separate meeting with Catherine McNamee you stormed out of the shop and left without finishing your shift.
You informed Catherine McNamee the Manager on Tuesday 10thNovember 2015, overheard by Linda Connolly, that you had quit your job and given the fact that you did not turn up for work on Wednesday 11thNovember or since then we had rightly or wrongly assumed that this must be the case. We were informed by Xin Cui that you were looking for your P45 and she requested that it be forwarded to the Merrion Row shop. At no time were you dismissed from your employment and this is still the case. Your position is still available and you should contact Catherine to get your roster for this week.
Yours sincerely….”
- Shop Manager:“Allie, your hours next week are 10am to 6.30pm”
Managing Director:“Allie, Please ring me. Tom Jones”
Neither of these two text messages were responded to by the Complainant and the Complainant submitted complaints, including a complaint of Unfair Dismissal, to the Workplace Relations Commission on 7thDecember 2015.
Key point summary of evidence by Mr Tom Jones, Managing Director
- •The meeting in the shop café area on 10thNovember 2015 was not a disciplinary meeting. It was an investigation meeting to see what the Complainant had to say about the customer complaint. The Managing Director asked the delicatessen manager to attend the meeting as a friend of the Complainant and to support her. The Managing Director acted as the chairman of the meeting and asked the shop manager to outline the customer complaint to the Complainant.
•The Complainant denied that she had done anything wrong and she became upset.
•The Complainant was not dismissed at the meeting and was not told not to come back to work. She was told she could finish her shift at the conclusion of the meeting as she had become upset at the meeting. She was told she could go home and reflect on the meeting.
•The Complainant was told by the Managing Director to tell the truth at the meeting and she was assured at the meeting that her job was safe.
•The Complainant was a good worker and the Managing Director did not wish her to leave.
•The Complainant’s texts were not responded to. Two phone calls were made to the Complainant in the days after the meeting as it was more personal to telephone her. Neither call was answered. The phone rang out and there was no voicemail.
•After neither call was answered, the Managing Director assumed that the Complainant did not wish to speak with him.
•No written communication was sent to the Complainant until a reply to her letter was sent dated 27thNovember 2015.
•The shop manager and the delicatessen manager were asked to make contact with the Complainant to make sure that she was coming back to work.
•On behalf of the Complainant, a P45 request was made to the payroll service provider by another employee of the Respondent who was a friend of the Complainant. The Managing Director approved the issuing of the P45 when contacted by the service provider and notified of the request. The payroll service provider decided the cessation date on the P45 based on the date that they received the request.
Key point summary of the evidence of Ms Catherine McNamee, Shop Manager
- •A customer sought to speak privately and outlined a complaint against a staff member. She described the Complainant. She asked that the matter be investigated and that she be advised of the outcome.
•The details of the complaint were outlined to the Complainant by the shop manager at the meeting on 10thNovember 2015.
•At first the Complainant said that she didn’t understand. The Managing Director asked the Complainant to go home and reflect on the meeting.
•At the conclusion of the meeting, the Complainant questioned the shop manager as to why she believed a customer’s word over her word as a staff member. The Complainant then said,“I quit”. The delicatessen manager witnessed the Complainant saying that she was quitting.
•After the meeting a discussion took place between the Complainant and the shop manager in the car park outside the shop. The Complainant first said that she didn’t do what she was being accused of. The Complainant then admitted to pressing the ‘no-sale’ button when it was too busy and that she would ring in the sales later when it was quiet. The conversation became heated and the shop manger became“cross”with the Complainant. The Complainant stormed out of the car park.
•The Managing Director was told by the shop manager later that day that the Complainant had said she was quitting.
•It was assumed by the shop manager that the Complainant said,“I quit”, in anger and that she would probably come back.
•The Complainant’s three text messages were received. No response was sent because the shop manager was at home at that stage and the texts were assumed to be in anger and also the Managing Director said that he would telephone the Complainant.
•The Managing Director said that the Complainant didn’t answer his calls.
•The Managing Director did not instruct the shop manager to telephone the Complainant or follow up with her.
•The Managing Director instructed the shop manager to send the Complainant a text on 4thDecember 2015 detailing hours of work for the following week. No explanation was given for this by the Managing Director to the shop manager.
•On 11thNovember 2015, the shop manager told the customer that had made the complaint that the Complainant had quit her job.
Key point summary of the evidence of Ms Linda Connolly, Delicatessen Manager
- •The delicatessen manager was asked by the Managing Director to sit in at the meeting on 10thNovember 2015. She was shocked because she had known the Complainant for eight years.
•The Complainant was upset, angry and loud at the meeting.
•The intention of the meeting was to have a chat. The Complainant was not dismissed at the meeting.
•At the end of the meeting she heard the Complainant say,“I quit”to the shop manager. She took it that the Complainant said it in a fit of temper.
•On the following day, 11thNovember 2015, the delicatessen manager asked another colleague had she heard from the Complainant. That colleague said, no.
Key point summary of the Complainant’s evidence
With the assistance of an Interpreter the Complaint gave evidence to the Court.
- •The Complainant said that she worked for the Respondent for 8 years and said that she had enjoyed her work.
•The Complainant was asked by the shop manager to attend a meeting with the Managing Director on the afternoon of 10thNovember 2015 in the customer café area of the shop.
•She was shocked to see four managers at the meeting. This had never happened before.
•The Complainant didn’t know what the meeting was for. The Managing Director said that they had received a complaint about her pressing the ‘no-sale’ button.
•The Complainant said that she was confused and didn’t know what the Managing Director was talking about.
•The Complainant said that the Managing Director was not interested in her responses.
•The Managing Director asked the shop manager what time the Complainant was finishing her shift. The reply was, 6.30pm. The Managing Director said,“she can finish now”and he left. The Complainant stayed at the table.
•The Complainant then went to the locker room. She thought that she had been wrongly accused so she went to speak with the shop manager. The shop manager asked her to go outside with her.
•The Complainant asked her why she didn’t check the CCTV. The Complainant said that the shop manager raised her voice to her and told her to go away.
•The Complainant stayed in the car park and sent text messages to the managers.
•The Complainant said that she was hurt and upset and felt that she had lost the managers’ trust.
•The Complainant went back in to the shop and spoke with another employee. He told her that her hours had been given to him. The employee helped her write a text message to the managers.
•The next day she stayed at home and waited for a call from the shop manager. She got no calls from anyone and got no replies to her texts. She had no missed calls on her phone from the Managing Director or any other manager.
•The Complainant said that she felt that she was no longer employed by the Respondent.
•Two or three days later she got a call from an employee of the Respondent who requested that she return the keys that she held to the Respondent’s premises. She had had the keys for two or three years and had never been asked to return them before.
•The Complainant felt it was unfair and she sought advice from the Workplace Relations Commission. She was assisted in drafting a letter to the Respondent. She sent the letter on 12thor 13thNovember 2015 to the Respondent but got no reply. She sent a second letter which was responded to by the Managing Director on 27thNovember 2015.
•The Complainant said that she had heard that the shop manager had said that the Complainant had admitted wrongdoing so she sent a text message to the shop manager.
•The Complainant said she got a text message from an employee of the Respondent saying that her P45 was ready for her. She said that she never requested her P45 or asked anyone else to request it.
•In December 2015 the Complainant received a text message from the shop manager giving her hours of work. She thought this was unusual. She got a text message from the Managing Director asking her to ring him. She says that she did not reply because he had fired her and was no longer her boss.
•The Complainant says that she did not say,“I quit”. She says that at that time she did not know what the expression,“I quit”meant.
•The Complainant said that she believed that she had been dismissed by the Managing Director on 10thNovember when he said to her,“she can finish now”.She says that her dismissal was put in to writing by way of her P45 being issued to her.
•The Complainant said that following her dismissal she got a part-time job in December 2015 for 14 hours per week on a lower hourly rate than she had been on. She said that she was working a 40-hour week for the Respondent and continues to look for full-time work. She provided the Court with evidence of her efforts in this regard.
Key point summary of the evidence of Ms Xin Xin Cui, a former employee
With the assistance of an Interpreter this witness gave evidence to the Court.
- •The witness told the Court that she had worked with the Complainant since 2007. She no longer works with the Respondent.
•The witness said that she did not request the Complainant’s P45 on her behalf and that the Complainant never asked her to make such a request or for any such assistance.
•The witness said that she did not know who the payroll service provider company was and that when she had occasion to request her own P45 she asked the Managing Director.
•The witness said that she was not qualified to ask for someone else’s P45.
The Law
Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:
- 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:- (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to insection 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) ofsection 7(2) of this Act.
- (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
The Court had the benefit of substantial written and oral submissions in this case.
Dismissal is disputed in this case. The Respondent witnesses, on the one hand, gave evidence that the meeting on 10thNovember 2015 with the Complainant was of an investigation nature for the purposes of seeing what the Complainant had to say about the customer complaint that had been made about her, that the Complainant had been assured at that meeting that her employment was safe and that it was the Complainant herself who had left her employment.
The Complainant, on the other hand, gave evidence that the Managing Director of the Respondent dismissed her from her employment at that meeting, made no contact with her in the aftermath, asked another staff member to cover her hours, sought the return of her keys to the Respondent’s premises and sent her a P45.
Having considered the totality of evidence in this case, the Court is satisfied that, whether it was intentional or not, the Complainant’s employment was brought to an end by the Respondent at the meeting on 10thNovember 2015.
The actions and inactions of the Respondent in the aftermath of the meeting were not consistent with the Complainant terminating her own employment. In this regard, and taking into consideration the fact that the Managing Director’s evidence was that the Complainant was a good employee whom he did not wish to lose, the Court finds it significant that no direct follow up or contact was made with the Complainant in the immediate aftermath of the meeting and her numerous text message while received by the Respondent went unanswered. It was not until the Complainant wrote to the Respondent some two weeks later enquiring as to the reasons for her dismissal that she received any response from the Managing Director, who at that stage had authorised her P45 to be sent to her. The Court is of the view that there was an obligation on the Respondent to formally correspond with the Complainant in the aftermath of that meeting and reassure her that her employment had not been terminated. If it was deemed necessary then the disciplinary procedures, initiated on 10thNovember 2015 could have been followed through.
The Court is satisfied that the actions of the Respondent in the aftermath of that meeting were consistent with her employment having being brought to an end by the Respondent, intentionally or otherwise. In this regard, the Court finds the following to be significant: a complaint of potential wrongdoing was made against the Complainant by a customer; an immediate meeting with the Complainant, without prior notice, was arranged to deal with the complaint which was attended by the Managing Director and three other Respondent managers; the meeting lasted some five minutes in total during which time the Complainant became upset and the Managing Director said she could finish now (before the expiry of her shift); the Complainant cleared out her personal belongings from her locker immediately after the meeting and left the premises; the Complainant sought to establish contact with Respondent’s managers through text messages in the immediate aftermath but received no responses from the Managing Director or the other managers; the Complainant’s shift hours were redistributed to other colleagues; two or three days later the Complainant was requested to return her keys to the Respondent; the Complainant subsequently received her P45 from the Respondent.
In these circumstances and in the absence of any correspondence, formal or otherwise, from the Respondent to the contrary, it was not unreasonable for the Complainant to be of the view that her employment had been terminated. At the very least, there was ambiguity about her employment status, taking into account language difficulties and the lack of any formality, it was clear to the Court that the Complainant believed that the Respondent had terminated her employment and the Respondent did nothing to correct that misunderstanding.
The Court is satisfied that there were no substantial grounds justifying the dismissal of the Complainant from her employment and that, accordingly, the dismissal, having regard to all of the circumstances, was unfair. The complaint of unfair dismissal by the Complainant is therefore upheld.
Determination
The Complainant was unfairly dismissed.
The Court determines that an award of compensation is the appropriate remedy in this case and measures that compensation at €7,360.00.
The Decision of the Adjudication Officer is set aside accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th May 2017______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.