EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Nicolas Alayi - Claimant UD524/2015
Against
Tesco Ireland Limited - Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Clancy
Members: Mr J. Hennessy
Ms. P. Doyle
heard this claim at Limerick on 25th April 2016.
Representation:
Claimant: Mr Cathal Minihane, Clohessy Minihane Solicitors, 24 Barrington Street, Limerick
Respondent: Mr. Raymond Mulcahy, IBEC, Gardner House, Bank Place, Charlotte Quay, Limerick
This being a case of constructive dismissal it fell to the claimant to give his evidence first.
The determination of the Tribunal was as follows:-
Claimant’s Case:
The claimant is a gentleman of African origin who commenced working for the respondent on 6th August 2007 as a Security Officer in Retail Store T in the south west of Ireland. He enjoyed working in the Store. He reported to Store Manager DMcE who joined the company in around May 2013.
At approximately 9 am on Friday 23 May 2014 he was waiting for Team Leader ML outside the staff exit to carry out the change runs for the checkouts with ML. DMcE approached the claimant shouting aggressively at him telling him “not to let anyone into the cigarette room”. DMcE also shouted “you should not give the company reps access to the cigarette room” and “Do you think a Black will have access to the high value speciality cigarette room”. During the course of this tirade ML was close by and overheard the aggression.
Some of his colleagues subsequently approached him and said they were sorry to hear what had occurred.
There had been a previous incident in the store when a lady lost her purse and the claimant was called to the desk. The weather had been bad that day. The lady had €2,000.00 in her purse together with a credit card. The claimant advised her to go to the Garda Station and report it. The claimant checked the CCTV footage but because of bad weather that day one security camera had not been functioning and the incident was not visible on the second camera. DMcE was on annual leave during this time and then the claimant was on three days annual leave. When he returned to work he was called into the manager’s room and questioned about the missing purse and why he had not logged the incident in the incident log book. DMcE told him he could be dismissed at that time. He felt as though he had in fact done something wrong.
The respondent did not follow fair procedures in relation to this incident, at the time.
On another occasion the claimant needed time off at his own expense for family reasons. DMcE refused him this request and he was unhappy with this. He subsequently spoke to the Personnel Manager and his request was granted.
The claimant was not due to work on 24 and 25 May 2014 and attended training on Monday 26 May 2014. Through his union representative KW he lodged a grievance. The claimant was absent on sick leave from 28th May 2014 to 30th May 2014 and as he had pre-booked holidays for some weeks in June he was absent on annual leave at this time.
He attended a grievance meeting on 17th July 2014 together with his union representative. Two weeks previously the respondent had gone through procedures and refreshed memories on the Dignity at Work policy.
AM Group Personnel Manager carried out a full investigation and by letter dated 28th August 2014 relayed her findings to the claimant. She found that DMcE did make “inappropriate” comments. However, she could not substantiate if these comments were made with racial intent. She recommended that DMcE apologise to the claimant.
The claimant was unhappy with these findings and appealed his grievance. He attended an appeal hearing on 10th October 2014. SD, a Store Manager working in another store carried out the appeal. SD recommended that DMcE apologise to the claimant for making the comment. He found that the comment was inappropriate but not racially based and upheld the original grievance lodged by the claimant.
DMcE offended the claimant. The claimant had done nothing wrong. While the respondent offered him an alternative role in another store, he did not want to transfer to another store as he enjoyed working and wished to remain working in his current place of business. He also felt it unfair that he was recommended to move location, instead, DMcE should have had to move location instead. The claimant felt he could not return to work in that environment while DMcE continued to work in the store.
If the respondent moved DMcE to another store the claimant would have returned to work following an apology from DMcE.
The claimant was extremely upset and became ill as a result of the respondent’s treatment of him, such that he sought medical attention. During the claimant’s absence on sick leave he delivered his medical certificates in person to the store and DMcE avoided making contact with him when he attended the store, which compounded the claimant’s belief that DMcE had an issue with him and that the claimant was still being made to feel he had done something wrong.
DMcE never gave the claimant an apology, which had been twice recommended by the Respondent.
During his sickness he had to attend counselling and was prescribed anti-depressants. The claimant had not experienced these types of symptoms previously, and believes his illness was a result of the respondent’s conduct toward him.
By letter dated 22nd December 2014 the claimant informed the respondent that he would be resigning in two weeks time.
The claimant tendered his resignation on 19th January 2015.
He was on illness benefit for almost 2 years. Since April 2016 he has been seeking alternative employment.
Respondent’s Case:
DMcD, the Personnel Manager, was transferred to Store T in October 2014. During the course of her employment she reviewed staff files. She saw that the claimant had lodged a grievance and was absent on sick leave for some time.
Following the claimant’s resignation letter she wrote to the claimant and met him on 16th January 2015. She told the claimant that if he returned to work she would personally see that he would be looked after and that he would feel safe in the workplace. She told him that he could return to work on shorter hours and support mechanisms would be in place in the Store.
The witness only worked for eight months in this Store and has been transferred to another Store where she still works.
Two days before the claimant tendered his resignation his union representative requested a transfer form for him but the claimant never completed this form.
Determination:
The Tribunal carefully considered the evidence adduced and the documents opened to it during the course of the Hearing. The facts of the case are not in dispute and are very straightforward. The claimant was at work on the morning of 23rd May 2014 when his manager subjected him to an unprovoked and aggressive verbal outburst.
The claimant complained and his complaint was investigated by the Group Personnel Manager who found that the manager did make an “inappropriate” comment. Despite the manager saying in his statement to the investigation that his remarks had included the phrase “would you let a black stranger into that room”, the finding was that the claimant had not been racially abused. The outcome of the investigation was that the manager was asked to apologise to the claimant.
The claimant appealed the outcome of the grievance investigation but the Store Manager who heard his appeal upheld the original outcome and again recommended that the manager apologise. This Store Manager in his letter dated 17th November 2014 told the claimant that if he wanted a transfer to another store he could make the request in line with the respondent’s transfer policy. No further action was taken by the respondent until the claimant tendered his resignation.
The Tribunal finds the lack of action by the respondent inexplicable. A grievance investigation found that the behaviour of the claimant’s manager fell short of the respondent’s policies and also found that the manager should apologise to the claimant, but did not. The Tribunal does not understand how the respondent found the offending comment as “inappropriate” but not racially based. Subsequently no action was taken by the respondent to ensure that the apology was forthcoming.
Even more extraordinary is the respondent’s proposal that the claimant move to a different store, rather than moving the manager to a different store, inappropriate and unfair. Furthermore, the Tribunal finds that no effort was made to facilitate the claimant’s return to work, in circumstances where he could continue to report to this same manager. The Tribunal finds that this failure to follow through on its own finding of an inappropriate comment, and the manager’s and the respondent’s subsequent conduct, justifies the claimant in believing that he had been constructively dismissed.
The Tribunal accepts the claimant’s evidence that the claimant’s unavailability to find other work is attributed to the conduct and actions of the respondent.
The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. Taking the claimant’s loss into account he is awarded the sum of €24,000.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)