EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
EMPLOYEE – claimant UD1535/2012
EMPLOYER – respondent 1
EMPLOYER – respondent 2
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr J. Horan
Mr M. O'Reilly
heard this claim at Dublin on 25th October 2013
Claimant(s) : Mr Tom O'Dwyer
Siptu, Misc, Liberty Hall, Dublin 1
Respondent(s): Mr Padraig D. Lyons BL, instructed by:
Mr Shea Cullen
Shea Cullen Solicitors
23 Fitzwilliam Place, Dublin 2
The determination of the Tribunal was as follows:-
A preliminary issue regarding the respondent’s name was withdrawn by the respondent’s representative. The second named respondent was added with consent.
The claim under the Organisation of Working Time Act, 1997, was withdrawn at the outset of the hearing by the claimant’s representative.
The claimant was employed as a cashier at the respondent’s restaurant from July 2008 until 17th January 2011.
Summary of Respondent’s Case:
The General Manager gave evidence. She was employed as the accounts manager from 1999 until she was promoted to general manager in November 2010. On 2nd December 2010 there was heavy snow which forced the restaurant to close early. As she was closing the restaurant the claimant arrived in a very distressed state. She explained to the manager that the Gardaí had raided the apartment where she lived with her boyfriend that morning and that she had been in Pearse Street Garda station all day. The claimant and her boyfriend, who was an ex-employee, were questioned about a robbery which occurred at the restaurant over the October bank holiday weekend earlier that year. €27,000 was taken from a safe. The thief had keys to the premises.
The claimant told the manager that she had known nothing about the robbery and she was in a state of disbelief. The manager had been unaware that the couple lived together. She felt sorry for the claimant as she had no family living near her. She told her to go home and phone her sister. The claimant asked if she had lost her job. The manager said she did not know but that she would meet her the following Monday in a local hotel and in the meantime she would tell other staff members that she was sick.
The manager conferred with the owner of the restaurant. She persuaded him to give the claimant a chance as she believed the claimant was innocent. She met the claimant on Monday 6th December 2010. She explained that if the claimant resumed her relationship with her ex-boyfriend then she could not continue to work at the restaurant. The theft was under investigation at this point. Ultimately the Director of Public Prosecutions chose not to prosecute the claimant’s ex-boyfriend. The company’s insurance policy did not pay out as there was a small fault on the alarm and the locks had not been changed. The claimant’s boyfriend was one of a number of people who had keys to the premises.
She also told the claimant that she needed to improve her attitude as there had been a few customer complaints about her.
The claimant returned to work at the end of that week. Her attitude improved in the period up to Christmas; however, she became ‘cockier’ in January 2011. The restaurant is closed Monday – Wednesday during January. On Monday 17th January the claimant phoned the manager. She wanted to arrange a meeting with her trade union representative on Thursday. The manager told her that they did not have a trade union in the restaurant, but that the claimant could come and meet her that day on her own. The manager had heard over the weekend that the claimant had resumed her relationship with her boyfriend. The manager felt that she had been made a fool of by the claimant. When the claimant arrived she told her that she knew that she was back with her boyfriend. She dismissed the claimant for misconduct that day for that reason.
The manager was cross-examined. There was a complaint to NERA (National Employment Rights Authority) in November 2010 and an inspection followed. All staff members were issued with a written contract of employment afterwards. The witness was unaware at the time that the claimant had made the complaint. The witness denied requesting the claimant to withdraw her complaint to NERA. It was not part of her discussion with the claimant. She did not offer the claimant to bring someone with her as she had come to the manager for the meeting.
Summary of Claimant’s Case:
The claimant gave evidence that she had no difficulties at work until her boyfriend was dismissed and he made a claim against the respondent. After she made her complaint to NERA in November 2010 the good relationship was gone. She contended that the customer complaints about her were faked.
On 17th January 2011 she phoned the general manager to seek a meeting with her in the presence of her trade union which was refused. She brought a letter with her from her trade union to give to the manager but she did not read it. The manager told her that she could not believe what she had done and that she hoped she would be happy with her boyfriend. The claimant believed that she had been suspended that day. She got her P45 and cheque a month later. She was not offered any representation at the meeting.
She contended that the agreement for her to return to work in December was that she remained split from her boyfriend and that she dropped the complaint to NERA. She phoned NERA but she was told they would investigate anyway.
The claimant was cross-examined. She accepted one complaint made about her, but that she was refused a copy of it. She contended that she had not been arrested but asked to answer questions. She was told that €13k was found in her apartment, but she never saw it. She did not believe that the manager’s sympathy towards her was genuine. She believed that she was going to be dismissed on 2nd December 2010 when she came from the Garda station.
The claimant gave evidence of her loss. Three days minimum notice was conceded by the respondent.
As agreed at the hearing the Tribunal awards the claimant €123.59 under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 in respect of 3 days’ pay.
The Tribunal finds that the claimant was unfairly dismissed as the procedures were fundamentally flawed. The claimant was offered little or no procedures. However, the reason the trust broke down was the failure of the claimant to honour an arrangement integral to trust and confidence between the parties. Based on this the claimant contributed significantly to her own dismissal under section 7(2)(f) of the Unfair Dismissals Act, 1977, as amended. Accordingly, the Tribunal awards the claimant €1,000 (one thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
The claim under the Organisation of Working Time Act, 1997, was withdrawn at the outset of the hearing.
Sealed with the Seal of the
Employment Appeals Tribunal