Complainant

Respondent

Anonymised Parties

A butcher

A supermarket

Representatives

Business & Commercial Solicitors

Management Support Services (Ireland) Ltd

Act

Complaint Reference No.

Date of Receipt

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

CA-00012287-001

04/07/2017

The complainant commenced working for the respondent on the 1st November 2015 and his last day in the workplace was the 19th May 2017. The fact of dismissal is in dispute.

The complainant is a craft butcher of 52 years standing. He commenced working for the respondent in November 2015. There was an interaction on the 19th May 2017 when the respondent owner challenged the complainant about how a pork filet was given to a customer. The complainant described the owner as overbearing. The owner told the complainant “you’re gone, gone, gone” and the complainant removed his apron and left the premises. This was the last straw as the owner had been bullying and dictatorial. It was submitted that the words said by the owner amounted to dismissal.

On the 22nd May 2017, the complainant emailed the manager. There followed a letter of the 29th May regarding a conduct investigation. In May and June 2017, the complainant established that he was not rostered for work. The complainant obtained a medical certificate regarding his unfitness. The complainant first saw the grievance procedure in June. It was otiose as the owner’s dictatorial style meant that the complainant had lost trust and confidence in the respondent. The complainant had surgery in December 2017 and has been on jobseeker’s allowance since then.

The complainant relied on EAT case of Duggan v Drainage Service (UDD 1737) and the extract from Redmond on Dismissal, 3rd edition. The owner’s words were so clear to allow the complainant to consider himself to have been dismissed. This was an objective test.

In evidence, the complainant said that he had been in butchery since he was 13 years old. He ran his own business at 25 and owned five shops. He was very grateful to get the job with the respondent and was very enthusiastic in the role. He was hired as a butcher and promoted in January 2016 to the manager/chargehand’s role. He thought that this involved purchasing meat but did not have autonomy to run the butchery department. The owner would come and go and ask questions. The orders were incorrect and the wrong meat was purchased. The owner and the complainant went to a meat processor to identify good meat. This was to improve of the quality of the meat supplied to the respondent. They went to the lamb supplier and ensured that they were supplied female lambs at a lower price. The complainant also negotiated that offal would be supplied for free. The complainant did not feel that the respondent appreciated this.

The complainant said that there was a very good team of lads in the department, but there were issues between them. He acknowledged that he may have gone too far with a couple of the lads but he brought them back in. It was important to have a happy staff. People were terrified of the owner and he would often not say hello. The owner would not know all his customers and staff. There was a high turnover of staff.

The complainant said that the owner was very good at the beginning. He became aware the owner was paying too much for beef and the supplier acknowledged this mistake. The complainant ran that shop as if it was his own. He ensured that staff also engaged with customers. He had a great relationship with customers but he was taken aside and asked not to familiarise himself.

The complainant said that he was called to performance meetings. In the middle of June 2016, he was called into the office with all the butchery and baking staff. He realised on his arrival at work at 7.30am that the meeting was taking place in the back office. The owner raised issues regarding staff not being happy. One staff member spoke in the complainant’s favour. The security guards, however, criticised the complainant. He was dumbfounded and the owner said he was also not happy. There was no follow-up to this meeting. Later, the owner bypassed the complainant and spoke to others. The owner suggested that he let one staff member go and the complainant replied that he should not let this person go as he was the owner’s eyes on the floor and also an excellent butcher. The complainant sought to reward staff by giving them a Saturday and Monday off, but management did not like this. The staff were very happy but the manager told him to stop.

The complainant said that there were about 6 or 8 cameras along the counter. They were not pointed out to him. On one occasion, the owner phoned and asked what a customer said as they looked drunk. The complainant believed that the owner could hear what was being said. Furthermore, one staff member was giving meat away to people he knew and the owner told him to watch him. The owner bypassed the complainant, who objected when he went to an apprentice to find out what they needed for a meat order. The owner only approached the complainant when there was a real problem. The complainant said that he knew at the back end of 2016 that he did not have autonomy. He overlooked this and worked hard. He did not fight with people and sought to get the job done.

On the 19th May 2017, the complainant was approached by a customer who asked for a pork steak to be trimmed. The customer said that the cut was too big and the complainant trimmed it. The customer went away happy and spent €14.50 on meat. The complainant cut the meat in four fillets, and sold two. He had two fillets to sell. There was an emphasis on customer satisfaction. The owner then came to the counter and asked why the complainant had cut off the ends of the pork steaks. He replied that this was what the customer wanted. The owner asked whether this was good butchery practice and the complainant accepted he may have used an expletive in reply. He said “I have 52 years of experience in butchery and you know f*** all”. The complainant said that he then sharpened a knife and told the owner to go away. He accepted that he raised his voice.

The complainant said that the owner then followed him round the counter and the complainant told him to go away. The complainant sharpened his knives so as not to hear what the owner was saying. The complainant was cornered at the sink and the owner gestured for the complainant to come towards him. The owner said “you’re gone [complainant ‘s name], you’re gone”. The complainant put down his knives and left in a flood of tears. He was very emotional and met a colleague in the car park and told her that he could not believe that man. The complainant went to a local park and spoke to his wife. The complainant kept the dismissal a secret for two weeks. He phoned a colleague on the 28th May to ask if he was on the roster and was informed that he was not on the roster.

The complainant said that most of the staff witnessed the incident of the 19th May 2017. A butcher colleague was the closest and asked the complainant to calm down when he was sharpening a knife. The complainant did not know whether this colleague had seen the gesture. The complainant said that his mother had died the previous week, aged 96. He took annual leave after the 20th May 2017 to attend her funeral. The owner expressed his sympathy as he had when his brother died.

The complainant outlined that the owner then brought in another butcher, who assessed the counter as being excellent. The complainant has raised the cutting skills of some staff. There had been a mice infestation, which had eaten through product. The owner, however, said that this should be vacuum packed again and they were sold. The respondent also had meat two weeks out of date and the manager said that it was only a date and this was sold. The complainant cited these are examples of poor butchery practice. His trimming of the pork steaks was not bad practice. The complainant said he signed a contract of employment but was not given one to keep.

After his dismissal, the complainant said that a colleague told him that it was all around the store that the complainant had walked out. This led the complainant to email the manager on the 22nd May 2017 and he had never walked out of a shop before. He received the letter on the 29th May 2017 to attend a meeting. The complainant said that this would be a kangaroo court. He was concerned that a disciplinary sanction would follow the meeting. He had been rostered to work on the 20th May 2017 but was too upset to attend. The complainant said that the letter of the 29th May 2017 was incorrect as he had not thrown a knife. He was on annual leave the following week. The letter refers to his statement about leaving, but he did not know what this could refer to. The complainant did not say he was resigning.

The complainant felt that his world was upside down. He was sore because of a health issue and his mother had died. He had been in situations with the manager and the HR manager and did not believe he would get a fair hearing. He wanted to bring a solicitor to the meeting. The manager later emailed to say that he had only received the complainant’s earlier email. He sent the procedures to the complainant. who did not feel he was going to get justice by making a bullying and harassment complaint.

After the dismissal, the complainant was on jobseeker’s allowance and made a few enquiries with a few associates regarding work. He could easily have got a job but had an underlying health problem. He had an operation on the 7th December 2017 and was in hospital for six days. This was very painful and he was only now available for work.

In cross-examination, the complainant said that the managers in the store were the HR Manager and the manager. The other departments had charge hands. It was put to the complainant that this role was that of a working foreman. It was put to the complainant that he may have ordered but was not the buyer. The complainant said that his role was to ensure that staff were happy and to assign staff to their duties.

It was put to the complainant that the owner and colleagues would disagree that he had made improvements to the counter. The complainant accepted that the owner raised the issue of the counter’s profit. It was put to the complainant that the early morning meeting took place in 2017 and a letter was sent to all staff. It was put to the complainant that there was disquiet amongst the whole team. He replied that there was disquiet on other counters too.

On the 19th May 2017, the complainant said that he had four pork steaks left on the counter and he would have to take other product out from the fridge. There were smaller steaks but the customer wanted this particular steak. It was necessary to make the cuts to ensure that the meat that sold cooked evenly. The complainant said he was certain that the remaining meat would sell. It was put to the complainant that he had not given this explanation to the owner when he asked this on the 19th May; he replied that this was a silly question as there were serious incidents to address. The complainant replied that this is what the customer wanted. The owner then asked him whether this was “excellent butchery practice”, who replied by saying “you know f*** all about butchery”. The complainant felt under pressure and did not feel he had to justify himself to the owner. There were then issues with the mice infestation and the “rancid” beef.

It was put to the complainant that the owner had discreetly beckoned him over; he replied that he walked out as he was “gone”. He did not take his knives as he could always get them back. It was put to the complainant that the owner never said he was “gone”. It was put to the complainant that his voice had been raised while the owner’s was not; the complainant accepted this. The complainant said that he felt this was the last day of bullying. He said that it was quite possible that he told the owner to “f*** off”. The complainant went from behind the counter when the owner told him he was gone. It was put to the complainant that the owner asked him to come from behind the counter on numerous occasions. It was put to the complainant that there was a great deal of communication prior to him leaving the counter; the complainant said that this was quite possible. It was put to the complainant that the butcher witness said that the owner was trying to calm him down; he replied that he was discrete and knew what he was doing in beckoning him out.

The complainant sent the email of the 22nd May 2017 to the manager as this was the only email address he had. It was put to the complainant that in the email, he does not deny walking out or challenge the rumours that he had left; he replied that he heard the rumour on the 20th May and this was why he emailed the manager. It was put to the complainant that he would have been rostered on the 29th May 2017; he replied that he wanted to check that he was definitely gone and did this with a colleague. The complainant said that he did not contact the manager as he needed to have someone with him. It was put to the complainant that he checked the roster because he wanted to make sure he was gone.

It was put to the complainant that the scheduled investigation meeting of the 29th May was what an employer would do with an employee; he replied that he was not going into another bullying session. The complainant said that he does everything by the book and that the owner enjoyed sacking him on the spot. He said that the owner was covering himself. It was put to the complainant that the letter of the 29th May offers that he can bring a colleague or a representative; he replied that his solicitor had written on his behalf and he did not want to sit in front of the respondent and be humiliated. It was put to the complainant that the business had a union; he was aware of this and did not avail of the union’s help.

It was put to the complainant that the manager’s email of the 6th June was indicative that he thought that the complainant was still an employee. The complainant said that he did not feel comfortable going through another meeting. It was put to the complainant that it was the 28th May that he was sure of the dismissal because he was not on the roster. He also submitted medical certificates to the respondent after the 19th May and the complainant said he was advised to do so by the Department of Social Welfare.

The complainant said that he had been very ill after the dismissal. In re-examination, the complainant said that he was not given the disciplinary policy or allowed to present his bullying complaint.

The respondent denies the claim of unfair dismissal. The respondent asserts that the complainant effectively resigned his employment on the 19th May 2017 when he told the owner he was leaving and left in a totally unacceptable manner. The respondent asserts that the owner did not terminate the complainant’s employment and denies that he told the complainant “you’re gone”. It further submits that the complainant cannot maintain a claim of constructive dismissal as he failed to avail of the company procedures offered to him.

In evidence, the owner said that the chargehand deals with the day to day running of the department, for example ordering, maintaining the counter and staff issues. There is a difference between purchasing and ordering as purchasing involves designating suppliers. He was not sure whether they got offal for free as stated by the complainant. He did not agree that they had made savings in the butchery department. His first concern arose in November 2016 and related to disappointing sales. He is present on the store most of the time and understood that people were not getting on. He called a general meeting of the department to address issues. He wanted people to agree to act amicably. On the 12th April 2017, he wrote to everyone after the meeting.

In respect of the events of the 19th May 2017, the owner said that one camera looked onto the meat counter and the other looked out. There is no sound recording. He happened to notice that the complainant had taken meat back from a customer and cut it. He confirmed what happened by looking at the counter and asked the complainant why he did this. He said that the remaining meat could be cut into pieces and the owner asked if this was good butchery practice. The owner asked the complainant to step out from the counter to discuss this further. The complainant had told the owner to “f*** off” at this stage. The owner went behind the counter and the complainant began sharpening a knife. A butcher colleague then intervened.

The owner stated that he could absolutely say that he never told the complainant he was gone. There was no further conversation between him and the complainant left. The complainant did not attend work the following day and the owner knew that he was not due in the next week. He was not involved in doing the roster, this was done by the manager and the HR manager. The owner wrote to the complainant on the 29th May to confirm that his statement about leaving on the 19th May was definitive. The owner felt that the complainant was still an employee until he asked for his P45.

In cross-examination, the owner said that he is not a butcher but is actively involved in the store. He is keenly involved on a daily basis. They hired the complainant and there was a vacancy for a charge-hand. They prepare a 52-week schedule to ensure that they buy the correct quantity of beef. The respondent dry-ages beef and only sells it on the designated date. He agreed about the complainant’s intervention at the visit to the beef supplier. The owner is the last resort in the company and the end of the process, after the chargehand, the HR Manager and the Store Manager. He did not agree that the complainant had cause to feel undermined. The first issue was the email exchange in November 2016 regarding sales.

The owner said that there had not been a rodent infestation. There were two mice and some droppings found on plastic bags. He gave the direction to throw out the top layer but the complainant said it was fine to wipe the plastic. Asked whether he was a bully, the owner said that his wife thinks he is a bully and there had never been bullying allegations made against him.

The owner said that the CCTV is used for public and private liability issues or shoplifting and staff dishonesty. There are signs regarding the CCTV. He felt that the scenario of the 19th May was inappropriate in front of customers. It was put to the owner that the letter of the 29th May did not say he would absent himself from the process; he replied that he did not think it necessary to specifically say that he would not be involved. The owner outlined that he found the complainant to be old fashioned in the role. He had spoken to the complainant about how he addressed female customers, saying “darling” “love” etc. He also raised issues of policy and procedure.

In respect of the April 2017 letter, the owner said there were some concerns in the butchery department. There was also issues with the complainant, for example a staff member raised using unwashed lettuce in a counter display. In respect of the incident of the 19th May 2017, the owner said that the complainant’s evidence was fanciful and farcical. He thought that in response to the customer, the complainant should have taken smaller pork fillets from the fridge. The owner’s only question was whether this was good butchery practice. The complainant dismissed his question and said that this was what the customer wanted. The owner asked the complainant to step to one side so they could continue the conversation. He may have gestured to the complainant but did not use the gesture to humiliate him. He was not angry or energised by the situation. He categorically did not say to the complainant that he was gone. He was aware that there were several staff and customers observing them. The owner said he was astonished when the complainant left.

The owner outlined that he dealt with the incident by the book and wrote the letter of the 29th May. It was on receiving the letter of the 2nd June 2017 that he first became aware that the complainant was saying he was dismissed. The complainant had been on the roster on the day following the incident. He outlined that the only thing he said after the complainant used the “f**” word was to ask him three times to step out from behind the counter. The owner did not react in any other way.

The first witness said he has worked as a butcher with the respondent for 32 years. The manager had taken his statement. The witness was on the counter and saw the pork steak being returned by the customer. He saw the complainant cut the meat and the owner came down and spoke to the complainant, who replied that the owner did not know what he was talking about and that he had 52 years’ experience. The owner asked to speak with the complainant and he walked round. The complainant then told the owner to “f*** off”. The owner may have gestured. The meeting in April 2017 was to try to increase morale in the department and to manage stock. In cross-examination, the witness said that this was a small work area. He heard the complainant say “f***” once and heard the owner asking the complainant to come over and have a chat. He described the owner as a very good manager. He thought that he handled himself well and the complainant acted over the top. He got the impression that the complainant had resigned.

The second witness outlined that he has worked for the respondent for 15 years and managed the pork and fish counters. He witnessed the complainant say, “go away from me” and that he had 50 years’ experience. The complainant also said “f*** off””. The owner asked the complainant to come out from the counter. The witness intervened and the owner said that it did not involve him. The owner was not aggressive and stated to the complainant “out, out”. The witness told the complainant to calm down. The complainant then took off his apron and got his coat. He did not hear the owner say “you’re gone, gone” as this conversation took place by the sink. The complainant put down the knife abruptly. The witness said that he has had run ins with the owner, who likes to be involved. The whole thing was stupid and involved two strong personalities clashing. He thought the complainant was great and a nice man.

The third witness said she worked for the respondent for 14 years. She was passing by the butcher counter and heard the complainant shouting. She could not make out the words and heard him say “leave me alone” and “f*** off”. She did not see who he was speaking to but then saw the owner, who calmly asked the complainant to step away from the counter. She heard the complainant swear twice.

Section 1 of the Unfair Dismissals provides the following definition of “dismissal”:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

The complainant relied on the Labour Court authority of Duggan v A & T Drain Services (UDD 1737), where, in the context of a plumber for whom the use of a van was “synonymous” with his employment, the Court held:

“In these circumstances when [the respondent director] told [the claimant] to hand over the keys of the van and made no arrangements for him to make his way home with his tools amounts in the Court’s view to a decision to deprive him of his capacity to continue in his employment. Taking the van was in effect a proxy for taking his employment from him.”

In Devaney v DNT Distribution Company Limited (UD 412/1993), the Employment Appeals Tribunal held “... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention” In Devaney, there was a conflict in evidence as to the words used; the claimant asserted he was told that he was “finished” and was told in an abusive manner to go home. In finding that the words did not amount to dismissal, the Tribunal noted that the employer often used very strong language and was in an angry mood when he spoke with the claimant. It also noted that the employer later left the claimant a phone message to call him.

In Mansour v Romanza Ltd (UD 360/2004), the Employments Appeal Tribunal found for claimant in the following terms: “The Tribunal, on the balance of probability, accepts the evidence of the head chef who was not involved in the incident but heard the manager tell the claimant, “Leave now”. It further accepts that the claimant had been insulted. In the circumstances it was reasonable for the claimant to believe that he had been dismissed. The Tribunal finds support for its conclusion that there was a dismissal in that, despite the claimant’s good attendance and good performance and the good working relationship that existed between them, no effort was made by the manager to contact him to resolve their dispute.” The claimant’s evidence was that the manager said “Go ****** away” “You’re ****** lazy and you’re ****** sacked. Go home.”

The central conflict in evidence in this case is whether the owner told the complainant “you’re gone, [complainant’s name], you’re gone.” The complainant asserts that these words were used, while the owner categorically denies this. It was not in conflict that the complainant told the owner to get away from him and to “f*** off”. It was also not in dispute that the owner asked the complainant to come out from behind the counter and gestured him to this effect. Furthermore, it was not in dispute that the owner was calm during this incident while the complainant was not.

The issues to be determined are whether, on the balance of probability, the owner used the words in question, and if so, whether the words amounted to dismissal. I agree that this incident involved the clash of two strong personalities. The complainant was steadfast in expressing his view that his actions amount to good butchery practice and customer care. The owner took a different view and communicated this to the complainant. It is not clear why the owner had to intervene there and then and why the owner had to persist in calling the complainant out from behind the counter. I note that in the email of the 22nd May 2017, the complainant refers to the owner twice telling him he was gone. This corroborates the complainant’s account.

In a case where is such stark conflict in evidence, it is prudent to examine the case having resolved the conflict in favour of the claimant. The question is whether the complaint succeeds, having resolved the conflict in the claimant’s favour. If the claimant is not successful, even with the resolution in his favour, there is no need to definitively resolve the conflict in evidence.

For the purposes of this exercise, I resolve the conflict in the complainant’s favour: the owner told him on two occasions he was gone. Having considered the above case law, I find that, even if these words were used, they did not amount to words indicating dismissal. While this was certainly a run-in between two strong personalities, it is not clear that the owner intended to terminate the employment relationship. This is corroborated by the respondent’s correspondence of the 29th May 2017, which points to an ongoing relationship. While the complainant may have been concerned about the course of any disciplinary or bullying complaint, this does not change the fact that the respondent considered him to remain an employee. It was still open for the complainant to challenge any disciplinary process because the incident involved the owner. It follows that I find that the respondent did not dismiss the complainant.

For the sake of completeness, I find that there is no constructive dismissal in this case. The incident of the 19th May 2017 or the other issues raised by the complainant do not amount to repudiation of contract. I note that the complainant did not engage in the company procedures, so as to succeed in a claim of repudiation of the contractual term of mutual trust and confidence or to show that his resignation was reasonable in the circumstances. The respondent set up a process to investigate the issues. The complainant could have participated in the process and brought a representative.

Taking these findings together, I find that the complaint of unfair dismissal is not well founded.

CA-00012287-001

For the reasons set out above, I find that the complaint of unfair dismissal is not well founded.

Unfair Dismissals Act

Words amounting to dismissal

Duggan v A & T Drain Services (UDD 1737)

Conflict in evidence