Complainant

Respondent

Anonymised Parties

A Shop Worker

A Shop Owner

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00015327-001

25/10/2017

This is a case where the Complainant claims that she was unfairly dismissed from her employment with the Respondent.

The Respondent says that the Complainant was not dismissed. He says that the Complainant resigned her position.

The Complainant says that she commenced employment with the Respondent on the 1st March 2015. The employment is a garage and convenience store and the Complainant worked at the Deli counter.

She says that at the time the dismissal arose the country was experiencing severe storms, with danger warnings being issued nationally with people being advised to look out for their own safety. On the morning of the 16th October 2017 the complainant arrived for work at 5.45am. She said that weather conditions were calm at that stage but that the wind increased significantly at about 8.00.a.m. She said that she advised the shop manager, at that time, that if the weather conditions deteriorated further that she would return home. She says that she lives 23 kilometers from her place of work. She said that she asked the manager if the intention was to close the shop, as other businesses had done, in those circumstances. She says that it had been reported that 2 people were killed in the storm in the Waterford area and she was worried, given that the storm was tracking in the direction of the shop.

She says that some customers had enquired off her if the shop was closing.

She was called into the owner’s office at 9.30 am and asked if she was talking to customers about the storm. She said that this was the general conversation initiated by customers, as businesses throughout the country were closing out of safety concerns. She says that she advised the owner that she was not complaining to customers as she had decided, with her own safety in mind, to return to her home anyway. She says that the owner asked her if she believed he had the safety of staff in mind. She said she believed he had.

She had asked the shop manager if the intention was to close the shop. He said the shop would remain open and she says that she reiterated her concerns. She said that the manager then went into the owner’s office and that she was called in to the owners office some 5 minutes later.

She says the owner told her to sit down and then asked her what was going on. She asked “what do you mean”. He said that he was advised by the manager that the manager had told him that the complainant was complaining to customers that he was refusing to close the shop. She says she denied this and said that customers had been encouraging her to go home as the weather was worsening. She says that the owner said that he had been monitoring the movement of the storm all morning and that the risk from the storm had been downgraded. She said that she had heard the news about 10 minutes previously and that she thought his information was incorrect. She says that “at this point the he (the owner) jumped out of his seat and opened the office door as he began shouting at me “go home F (the complainant) and when I replied “what?” he aggressively shouted “go home F, again.” She says that she asked about the following day to which she says the owner said “what about it?”. She says that she inferred from his tone that she was being dismissed and she gathered her belongings, as he watched her, and she left the premises. She says that the owner followed her until she left the premises.

The following day she received a text, from the owner, asking for her postal address so he could send her P45 to her. She says that was on the 17th October 2017. She, by text, sent in her address and received her P45 on the 18th October 2017.

The Respondent opens his submission by writing “I am very surprised at the referral of this matter to the WRC”. He goes on to say that storm Ophelia took place on the 16th October 2017.

He says that there had indeed been weather warnings and that he was conscious of the safety of all of his staff. He says that he had been checking with the National Hurricane Advisory Centre from 4.00 am that morning. He had driven around the environs of the shop on the morning and says the weather was calm at 5.00am.

He says that staff, including the Complainant had started work at 5.45am and that he had come to work at 9.20am. He was in his office and was “made aware that the Complainant was talking to customers, not about their business, but about her opinion that our business should be shut and that she should not be at work”. He says that he asked the Complainant to attend his office and told her that he did not consider her conversations with customers appropriate. He says that he asked her if she wanted to go home and that, at that, she basically stormed out saying “I quit”. She did not turn up the following day and he sent a “short text” asking for her address so he could send to her P45. He says that the complainant “did not at any stage indicate that she wanted to come back to work”

He believes that his submission clearly shows that the Complainant resigned.

At the time that this issue arose there were serious storms crossing the country, leaving death and damage in their wake. The fact that this would be the subject of conversation in a local shop is not surprising. I cannot believe that such conversations interfered with the relationship between staff and customers. Indeed no evidence was presented that such was the case, but it was inferred.

When asked at the hearing how it came to the attention of the Respondent that conversations of this nature had occurred and were initiated by the Complainant, the Respondent said he was advised by the shop manager. When the manager was called as a witness he said that he was advised of the conversations by the Respondent.

There was no witness to the conversation between the Complainant and the Respondent, in the Respondent’s office, on the morning of 16th October 2017. However, in the detail of the evidence put forward by the Complainant, I believe, on the balance of probabilities, that her version of events is more probable. She clearly did not intend to resign.

In the Respondents submission, the Contract of Employment including the Terms and Conditions are included. On page 6 of this document, under heading 21, “termination”, the document states:

“If you wish to leave your employment you must submit your notice in writing to your manager”. It then goes on to list the notice required, with a minimum of 3 weeks’ notice, required from the Complainant.

Under the “Disciplinary Rules”, in the same document, the sanctions for both minor and major misconduct are laid out. None of these were used by the Respondent in this situation.

I believe that the short meeting on the morning of the 16th October 2017 was a heated one and that this was contributed to more so by the Respondent. Use of any of the procedures mentioned above could have calmed the situation and led to agreement on the way forward.

The Respondent had a further opportunity for dialogue when the Complainant asked “ but what about tomorrow” as she left. If this was too much in the heat of the moment a further opportunity for dialogue was presented when he texted the Complainant, on the following day, seeking her address to send her P45 to.

There was no absence of available procedures, either in the Employment Contract or in the use of the procedures called for in Section 8 of the Unfair Dismissals Act, 1977, but there was an absolute failure on the part of the Respondent to use any of these, in an effort to avoid a dismissal. The Complainant was entitled to fair process in issues to do with discipline. None were used.

The Complainant was an excellent of 2.5 years standing, according to the Respondent. There was no evidence presented of any previous issues requiring the use of the disciplinary procedures against the Complainant.

I believe it was a dismissal when the Complainant says that she was shouted at to “get out” and that this was repeated. She was entitled to the rules of Natural Justice in having her issues heard and dealt with in a reasonable atmosphere. I do not believe that this was the case at the time of dismissal or in the following days.

I find that the complaint is upheld and I award the Complainant €5,600 in compensation for loss of wages.