EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Melanie O'Grady UD338/2013
Kellysdan Limited T/A McDonalds
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. J. Lucey
Members: Mr. W. O'Carroll
Mr. F. Dorgan
heard this claim at Limerick on 4th November 2014
Claimant: Mr. Thomas Wallace O’Donnell BL instructed by Mr. Peter O'Dea, O'Connor O'Dea Solicitors, 40 South Quay, Newcastle West, Co. Limerick
Respondent: Ms Muireann McEnery, Ibec, Ibec Mid West, Gardner House,
Bank Place, Charlotte Quay, Limerick
The respondent is a mainstream fast food franchised restaurant. The claimant worked as a junior manageress.
Dismissal is in dispute and the claimant contends that she was constructively dismissed. Therefore the onus is on the claimant to prove her case.
The claimant gave evidence to the Tribunal that she initially worked part time in the respondent restaurant. After she finished her college course she went on to full time work. She then worked as a trainee manager. After a while she was promoted to an area manager. An area manager refers to managing an area in the restaurant. The work was “OK at times” but she felt that if she had any problems or grievances she was “pushed aside”.
After a time she went on maternity leave and gave birth. She returned to work and asked to work part time. She changed from full time to part time work. She wanted to work part time because she had just had her first child. She “was grateful to them that they let me”. She also felt that it would not be a problem to return to full time work if she wanted to.
The claimant wished to return to full time work and wrote to the respondent to request to go to full time work. A letter to this effect dated 17th April 2012 was opened to the Tribunal:
“I (name of claimant) would like to change my availability from part time (20 hours) to full time (39/40 hours) and I would be fully flexible to work any day and any hours. …”
She had asked for this previously of the store manageress (AC) in December 2011. AC did revert to her in January 2012 but the matter “dragged on”. She spoke to the general manager in March 2012 (GC) who said that she would look into the matter. At some point in time she spoke the HR manageress who told her to put the request in writing. So she wrote the letter on 17th April.
The respondent replied to her by letter dated 27th April 2012, this letter which was signed by the general manager, was opened to the Tribunal:
“I refer to your recent request to change your current contracted availability from part time fully flexible to full time 34-40 hours per week. After careful consideration and consultation with (named person), I regret to inform you that due to current business requirements we are not in a position to grant your request at this time, however we will review this situation in 6 months. Should you have any further queries, please do not hesitate to contact me on the above number.”
The claimant told the Tribunal that she was disappointed that the respondent could not give her extra hours. She did not know what to do so she wrote a letter to the franchise Head office.
Regarding a suggestion that she was looking for other work the claimant explained that she wanted something full time: she has a small child and has to provide for him. She had spoken to SM and told her that she was doing an interview and SM said she would give her a reference.
During this time three other people were promoted into her (previous) position.
A letter dated 25/06/12, was opened to the Tribunal:
“In response to the letter signed by GC, dated19/6/2012, I would like to clarify what was discussed during ourtelephone conversation on the 15/6/2012. I did not state that Iwanted to resign. Rather it was GC who mentioned she hadheard from SM that I was looking for a new job as I hadinquired about obtaining a reference. I would like to make itclear; I had not mentioned I wanted to resign.I had been looking for employment elsewhere as I was not sure ifmy position with (the respondent ) was tenable any longer due to mygrievances with your company.GC had also stated she had received the letter from theEquality Tribunal. She then mentioned that I had a lot ofexperience and had been there so many years and suggested thatI should talk to the owner PD. I agreed to meet PD at the agreed time and date, stated in the letter dated19/6/2012. I hope this clarifies my point of view on the issue.”
An e-mail from GC to the claimant dated 13th July 2012 was opened to the Tribunal:
“Just to update you, (the claimant) just called me (15.40) regarding our meeting of Tuesday
when I offered her an extra shift in (other outlet)which firstly she said she would take, then came back in a said she didn't want it. I asked her to go away and to think about it for sure and let me know by Thursday. So she called me today and said she wasn't going to take this, she didn't know why she thought it would be a good idea, but didn't want to take up the offer. She said she was "happy" "with what she was getting right now, but said that she was looking for more hours. I told her that (PD’s) concern was to get her more hours and that they were available in (other outlet) , and now if she didn't want to take up this offer then she’d only get the same hours as before in (current location), she said she was aware of that.”
The claimant told the Tribunal that she was only offered one extra hour. She was working 24 hours and they respondent offered her 25 hours. Regarding the option of going to the other outlet “It did not seem like a good option because of pay for parking”.
She did meet GC and Am in the office and they told her that there were no extra hours but there was a possibility of a transfer to another store. However she contended that they gave her no details. She thought the situation had gone on for too long. She tendered her resignation. Her resignation letter dated 30th October 2012 was opened to the Tribunal. She felt she had to resign because she was in the company for 8.5 years and had asked to go back to full time hours from part time and because three people were promoted to her (previous) position
The Tribunal heard evidence from GC. Regarding the claimant requesting to go from part time to full time, she looked into her going on to full time hours. She had received a request in April 2012 and she responded by letter on 27th April 2012 (see letter above dated 27th April 2012.
They were not in a position to offer her more hours but they would review the situation six months later.
Regarding the point of them hiring staff, they did hire staff but the staff did a different job. The claimant was in a more senior position.
As to the offer of hours the manager of the other outlet offered her more hours.
As to the claimant contending that she was offered just one hour she had been offered five hours.
PD the owner met with the claimant to discuss her concerns. The claimant did say that she would give a try to the other outlet however she changed her mind. The claimant in changing her mind about the transfer to the other outlet told her that she “was happy” with the hours that she was getting and so declined the offer of a move to the other outlet.
Correspondence dated 16th November 2012 from GC to SH was opened to the Tribunal:
“Met with (Claimant) as arranged at 11 am in BBs cafe in the Crescent today.
This was a very informal meeting to clarify the contents of my last letter to her she had called me last Saturday asking what I had meant, and I suggested that we meet up and have a chat.
Present at BBs were SH, M O'G and myself, I had bought tea for all and had a chat to start with before clarifying the contents of the letter.
I expressed to (claimant) that I was sad to see her go and that after so many years of service it was with regret that she was leaving. I did say that after learning of her intention to leave that I did arrange an exit interview with (claimant) which would be common to be held with managers who were leaving, but it was unfortunate that she or we did not get any benefit from this meeting.
(Claimant)at this point raised her concerns about the discussion that we had in the office about her hours (6 month review as agreed). She said that she felt uncomfortable as she attended this meeting as she was not made aware of it. I said to her that my intention was never to make her feel uncomfortable, but as she can appreciate, it can e difficult to get everyone together at the same time, and as I can be in any of the stores throughout a day it makes meeting up even harder. As I explained, I attended the Crescent, A was there, as was S, so I had had the discussion with A about hours, and then B had said that (claimant) was in did I want to meet her, and I said yes, why not, ask her to come in. I said it just happened that way.
(claimant) had asked me was I suggesting an option to move totally to another store or was I saying that she had split hours in two stores option still open.
I explained to (claimant) that as she had originally suggested she wanted more hours of work, and it was her suggestion to work between two stores then that option was still open, but the hours would be Cruises St.
She told me that she had now secured a Full time position and they would give her the full time hours she needed. I expressed my well wishes to her in her new position. I thanked her for attending and wanting to clarify, and giving me the opportunity to respond and make things clear her, and I asked her had she any thing else that she wanted to ask, she said she had a list, and produced a list from her pocket.
She asked why she hadn't received notice of the delay in data request, and S confirmed that as there was a significant amount of data to copy and to protect others data, and that 2 other requests were made at the exact same time, and that S was on her honeymoon that these all contributed to the delay.
She asked if I had received her hand delivered letter requesting for CCTV footage from the meeting in the Crescent, and I replied that I had received it, and was looking into this matter.
She had no further questions and I told her that if she wanted to think about her option and give me a call then she could, but again wished her success in her new career and the meeting ended.
When walking through the Crescent SC, (claimant) was ahead of S and I, she turned and stopped us as we walked and talked and said when will I hear about the data request for the office, I said that I had been away for a few days and would look into it, S added that the IT company were involved in assisting this request, and that as soon as I hear something I will be in contact. She said ok and we parted.”
Correspondence note dated 10th November 2012 was opened:
“(claimant) called me at the Cruises St number and asked me about what i meant by a transfer. She was asking if I meant a permanent transfer to another store or transferring for the extra hours. I asked her was she interested in either option? and she said yes, and was confused because at the meeting last week it was said and she didn’t understand that it might mean a transfer fully to another store. she wanted to know how many hours she would get and what store it would be. I told her that the best option would be to sit and talk about what she wanted, and would she like to do that, she said yes she would, and i said that i would be away most of next week, and was on holiday the following week, but i would call her to see if i could arrange to meet either Monday or Tuesday next week. I would call her Monday after speaking to S. She said this would be ok. Call ended.”
The Tribunal heard evidence from AC, the store manageress. The witness was asked why there was an issue as to the claimant not going from part time to full time. She explained that they had done interviews for area managers in December (2011) and they had promoted three people from trainers to area managers the same grade as the claimant and the three positions were full time. They had hired other staff afterwards but those positions were different to that of the claimant position; “The claimant was in a more senior position” – (See above).
It is common case that the claimant requested to be placed on part time hours and her employer accommodated her. Sometime later she requested to be placed on full time hours or to be given more hours. The respondent tried to accommodate her. Her employer did offer her more hours in another outlet nearby but in her own evidence it did not suit her for various reasons. It was the claimant’s own evidence that the respondent had twice previously changed her hours at her own request i.e. the respondent had also changed her hours from full time to part time at her own request and the respondent had previously changed her hours from part time to full time at her own request.
When the claimant requested in writing on 17th April 2012 to change her hours the respondent replied on 27th April 2012, in a timely manner, stating in a reasonable manner that they could not accommodate her, and explaining why they could not and that they would review the situation the future. This to the Tribunal is an act of a reasonable employer.
Also the Tribunal accepts the evidence of Ms H that the claimant did not want to work more than a certain amount of hours because of the detrimental affect it would have to the claimant’s welfare entitlements.
The claimant did not discharge the onus of proof that she was treated in such a way that it was to be construed that she was unfairly dismissed.
The Tribunal determines that the claim under the Unfair Dismissals Acts, 1977 to 2007, must fail.
Sealed with the Seal of the
Employment Appeals Tribunal