Complainant

Respondent

Anonymised Parties

A Retail Supervisor

A Convenience Store

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-00018185-001

27/03/2018

The case concerns the alleged unfair Dismissal of a Supervisor by the Convenience Store involved. It arises out of incidents during Storm Emma in February/March of the year 2018.

A Written submission was made and was supported by considerable Oral evidence.

In summary.

Under severe pressure from the Respondent, Mr. Y, (who was overseas at the time) the Complainant, Mr. X, opened the Convenience Store during Storm Emma. The Store was effectively overwhelmed by customers as most of the major retailers were closed. The situation became chaotic. On the Respondents’ return a period of some four days passed without any real communication. The issue of a large Stock loss -circa €30,000 during the Storm had arisen. The Complainant sought a meeting with the Respondent to discuss the issue. He felt he was being unfairly blamed for this. This first meeting took place on the 8th March 2018. The meeting was frank and it ended in the Complainant handing back his shop keys and insisting that the did not wish to have any further Supervisory role in the Shop. He continued working as a Till Assistant as normal to the end of his shift.

That evening the Respondent sent a WhatsApp message to the Staff in relation to availability for work. He stated on the WhatsApp that “X left the job”. In a further exchange of Text Messages that night the Complainant asked if he was being “sacked” to which the Respondent replied “yes” at 22:08 hrs. It was clarified at 22:13 with a Request from the Responded that the Complainant “Apologise”.

The Complainant did not return to work following this exchange and was not put on the roster by Mr. Y.

A colleague, Mr J, sought to mediate and arranged a meeting between the two parties on the 13th March. This proved unsuccessful as did a further meeting on the 20th March 2018. At this later meeting the Respondent refused to give any assurance as to the work hours that might be available to the Complainant other than a bottom line basic of 20 hours. This represented a significant reduction in hours for the Complainant (from a previous 30/32 hours) and confirmed his view that the Respondent had an agenda to get rid of him. He requested his P45 a few days later.

He was denied all normal Employment Rights, was never informed of any performance issues and was given no opportunity to Appeal the Dismissal.

The Respondent presented a Written statement and also gave considerable Oral evidence. He accepted that, being overseas, he had miscalled how severe Storm Emma was. The significant loss of stock, shop lifting due to the overcrowding during the Storm, from the Shop was ultimately a result of his decision. He did not hold the Complainant responsible.

The 1st meeting which took place on the 8th March was heated on the Complainant’s part. He, the Shop Owner, felt grievously insulted by the language and attitude of the Complainant. He legitimately felt that the Complainant had abandoned the job. He accepted that the message by Text regarding “Sacking” had taken place but felt it had to be seen in context. At the second meeting, arranged by colleague Mr. J, the atmosphere was calmer and he had offered the Complainant an opportunity to resume work. The Complainant agreed to “Think about it”.

At the third meeting on the 20th March the Complainant had presented him with two demands/ options – a letter of Guarantee that he would get a roster of 35 hours per week and a commitment to pay the Complainant for all his days off to date.

He was unable to give a Letter of Guarantee of 35 hours but said he would try to organise a payment for the days off -probably involving some use of accrued holiday pay and a contribution from the Company. No formal agreement was reached and the Complainant remained off the work roster.

Matters rested until a Text message of the 26 March requesting a P45. It was suggested by his Accountant that the Complainant give a formal letter of resignation. This was not forthcoming and the P45 was issued on the 28th March.

In summary the Respondent held the Complainant in high regard. He had worked very satisfactorily for over five years. Matters had got heated around the 1st meeting on the 8th March but he had hoped that at the latter meetings a calm atmosphere prevailed and the Complainant would come back to work. He could not guarantee in writing a 35-hour week but he had always looked after the Complainant as regards hours and felt that this should have satisfied the Complainant.

He had not dismissed the Complainant, hot words by Text of the 8th notwithstanding, and he felt that this had been made very clear at the 2nd and 3rd meetings.

3:1     The Law and Legal precedents.

The case is covered by the Unfair Dismissal Act,1977 and SI 146 of 2000 - Statutory Code of Practice on Grievance and Disciplinary Procedures. The Rules of Natural Justice are also paramount.

Section 6 (4) of the Act provides

(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.

It was hard to see any of the clauses above applying to the facts of the case.

SI 146 of 2000 - Statutory Code of Practice on Grievance and Disciplinary Procedures could also be seen not to have applied.

There was little correspondence save for a few text messages and the exact content of the 3 face to face meetings was contested. It was clear however that the 3rd meeting had mentioned arrangements, hours of work etc for the Complainant’s possible return.

It was also clear that the 1st meeting of the 8th March had resulted in both parties getting into what could be best described as a “Huff” with each other. The efforts of colleague Mr. J to effectively get the parties talking calmly was well intentioned but came to nothing.

Having reviewed all the evidence it was hard not to believe that that the Respondent texts of the night of the 8th March indicated that the Respondent, in a fit of pique believed the Employment relationship had ended. This was compounded by a certain view, (Mr Y the Shop Owner being of a different cultural background) as to a what constituted in an Irish context of “being verbally insulted”.

However, when things had calmed own by the meeting of the 13th March Dismissal was clearly not Mr. Y’s intention. Effectively two offers to resume work were made by the Respondent but not accepted or got lost in the confusion. The 35-hour week demand /issue was not helpful in this context.

3:2      Final Conclusions

In final conclusion I came to the following views

1.       An Unfair Dismissal, albeit in a fit of pique, had taken place on or about the 8th March

2.       This Dismissal was effectively withdrawn by the Respondent but at this later stage (Meetings 2 and 3) the Complainant had developed his own agenda which made coming back to work difficult – a significant employee contributory factor in a consideration of the possible outcome.

The claim for Unfair Dismissal , in the light of point 1 above, is conceded to the Complainant but his own significant contribution to the final outcome is noted.

Act

Complaint/Dispute Reference No.

Summary Decision.

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

CA-00018185-001

An Unfair Dismissal has taken place. The Claim is well founded.