Complainant

Respondent

Parties

Mary  Farrell

The Windmill Stores Daybreak

Complainant

Respondent

Anonymised Parties

{text}

{text}

Representatives

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-00063097-001

24/04/2024

The Complainant alleges she was unfairly dismissed by the Respondent due to an difficulty she was having with another member of staff. The Respondent states that the Complainant left her position.

The Complainant took the affirmation and gave her evidence as follows:

The Complainant wasn’t given a contract of employment before she filed her case with the WRC. The Respondent stated that she was given a contract and produced the contract today. The contract isn’t signed by either party nor is it dated. She also stated that she was never given the employee handbook. The Respondent produced it today, but the Complainant said she never got it. It was not signed for.

In or around February 6th the Complaint was at work as normal and everything was fine. She was there again on the Wednesday 7th  and everything was normal. On Friday 9th, she was talking to the Respondent’s husband having a laugh. She then went out the back to make up the sandwiches. Susan came up to her and said “have you heard what Trena is after saying to one of the customers about you?”. She said she was going to go up to tell Gillian. She told Gillian that Trena said to a customer that she has just got the Complainant sacked. Gillian did nothing about it. Trena told several other customers that day that she had got the complainant fired. The following week the Complainant was working with Trena again and she kept repeating that she was going to get the Complainant sacked. The following week she put out some hot eggs on the counter. The Complainant didn’t see them, and she banged into them, and they fell on the ground and the hot oil and egg when all over the Complainant. The Respondent stated that she was asked to go home to clean herself up. The Complainant said that isn’t true and she was just told to go home. Trena was so angry all that day and spent the entire day banging doors etc. Ms. Victory’s husband Robert went up to look at the cameras. He came back down, and he asked the Complainant if she thought she had left the hot eggs there on purpose. She said she didn’t think so. He and Ms. Victory were talking about the Complainant and then they asked her to go home. She got a text the next day asking her to stay at home. On the Friday Trena was gone on holidays so she was allowed to come into work.

The following Tuesday she came in and Ms Victory told her she was changing her contractual hours and she was to come into work 2pm- 8pm.  She couldn’t do that because she minds her grandchildren. Ms Victory said “well that is all I have for you”.  She changed the hours before but then she could do the hours because she didn’t have to mind the kids after 4pm. The Complainant repeated she couldn’t do those hours and she just kept saying that is all I have. She went home. She text her a few times saying it wasn’t fair. Texts went back and forth. She was told that she couldn’t do Trena’s job because she couldn’t cook. The Complainant said she can cook but she was never asked if she could cook. She has been cooking since she was 14. The Respondent stated that the two ladies had to be kept apart and Trena’s role was harder to move because she did the cooking. She was paid for three weeks after that as a gesture of good will.

The Respondent stated she was never dismissed. She left because she couldn’t do the hours.

The Complainant contacted the Respondent via text message and requested she be given weekend hours instead of evenings.  She was told that there were no hours available at the weekend. The Complainant expressed her frustration about being the only one whose hours were altered and that was done without any real explanation. The Complainant stated that she felt she was being pushed out of her job. The Respondent relied by stating that she wasn’t being pushed out of her job. The change was made to facilitate the smooth running of the business. She stated that her job was there for her, and she could come in at 2pm to start her shift. The Complainant stated that she had 8 members of staff working on the Deli and asked why it was just her hours that were being altered. The Respondent replied setting out the logistic of rostering staff etc.

The Complainant isn’t working yet. She has been in hospital twice since then. The first time she was in four days and three days the next time. She is not available for work since she left. She wants to work but she can’t at the moment.

On the 22nd July 2022 Ms Victory gave the Complainant her contract.  The following week she gave her the company handbook. Ms. Victory never dismissed the Complainant.

There was an issue with Trena and the Complainant. There had been a number of incidents between the two of them.  The week before Trena said that she wouldn’t work with the Complainant anymore and then she said she wouldn’t talk to her anymore. There was hostility between the two of them when they were working together.

The day the eggs fell on the Complainant was Tuesday January 30th. Ms Victory was not working. Her husband called her and asked her to come it. When she arrived, she observed the Complainant’s clothing was covered in oil and eggs. She asked her to go and said she would pay her for the day. She asked her to stay at home the next day so she could come up with a solution as to what to do about herself and Trena’s animosity. Again, she said she would pay her. 

Trena was well trained on the Deli and she works five days a week. There were others who could do that work but they only worked 2 or 3 days a week. They had to keep Trena on because of that. On the Tuesday, she explained to the Complainant that she had tried to come up with a solution and the only thing she could come up with was to change her hours. She did check her CV and it said she wanted to work mornings only.  She explained to her why she couldn’t change Trena’s hours.

The Complainant never raised a grievance.

Ms. Victory was disappointed the Complainant left her role. She knew she wasn’t well at the time and that is why she gave her the three weeks wages. She had summitted a doctors note certifying her off work 14th- 20th.

The Complainant states that she never got a contract of employment. The Respondent referred to a contract during todays hearing but it was not submitted with their documents. It was submitted at my request following the hearing. That contract isn’t signed by either party nor is it dated. I also note that the Respondent stated the contract was given to the Complainant on the 22nd July but the letter accompanying the contract is dated the 22nd July.  The Respondent stated that the contract contains a clause that allows the Respondent to amend the complainant’s hours however I am not satisfied that the Complainant was ever given that contract. Therefore, her implied contractual hours were those she had been working for the months prior to the termination of her employment. She worked Tuesday, Wednesday and Friday 8am- 4pm. She couldn’t work in the late afternoons as she had to mind her grandkids.  Any alteration to those hours would have to be done with the consent of the Complainant.

The reason the Complainants hours were changed was to do an interpersonal issue one other female employee had with the Complainant. The Respondent did nothing to resolve this issue other than to change the Complainant’s hours. She didn’t ask the Complainant if she had any other skills. She just unilaterally changed her term and conditions knowing that she could only work mornings and early afternoons.  The Respondent did not invoke any disciplinary process in relation to the two ladies behaviour towards each other. She favoured Trena over the Complainant because of the days and hours she was available to work and because she was able to cook at the Deli counter. The Respondent’s unilateral change to the Complainant’s hour in full knowledge that she couldn’t work later afternoons/ evening was tantamount to a dismissal. In all of the circumstances I find that the complainant’s complaint succeeds.

Mitigation.

The Complainant has been ill since her dismissal and hasn’t been available for work. She has been in hospital twice. She wants to work but just isn’t available at the moment.

Having considered all of the evidence in relation to the dismissal and the evidence in relation to mitigation I am awarding the Complainant € 1,134.00.

I award the Complainant compensation in the amount of €1,134.00

Contract. Unilateral change to terms and conditions. Lack of procedures. Compensation.