EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD912/2015
CLAIM OF:
Brigid Whelan
-claimant
against
Peter Kelly
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Mac Carthy S C
Members: Mr. F. Cunneen
Mr. M. O'Reilly
heard this claim at Dublin on 4th April 2016
Representation:
Claimant: In person
Respondent: Wilkinson & Price Solicitors, South Main Street, Naas, Co Kildare
Background:
The claimant was employed in the respondent as a bar person. She commenced working for the respondent on 11th September 2006. Her employment ended on 30th December 2014.
The claim is under the unfair Dismissals Acts 1977 to 2007. However it is noted that from the outset Counsel for the respondent accepted that the claimant was not given a contract of employment and that the respondent would remedy that matter in terms under that Act (Terms of Employment Act 1994).
The respondent representative in opening their case told the Tribunal that the claimant was working in the bar on 30th December 2014 when an incident occurred involving members of the travelling community. The pub was closed on that day at 7.00pm (the claimant shift was from 12.00 pm to 7.00 pm). The claimant did not arrive into work on 31st December and her supervisor, Ms C worked the claimant’s shift.
The claimant disputes that the pub was closed at 7.00 pm.
Claimant’s case:
The Tribunal heard evidence from the claimant. A letter of resignation was opened to the Tribunal and the claimant confirmed the letter.
The claimant explained that a man, who was a member of the travelling community, entered the bar and demanded that she serve him. This was about 1.30pm. She told him that she could not because he was barred. He then told her that if she refused to serve him and continued to serve other members of the travelling community (who were in the bar at the time) then he would physically injure the others and inflict serious injury on her. The claimant explained that the man was a “scary man was very aggressive with a drink in him and the customers all scattered except for three”. He did say to her that an ambulance would arrive for her. She kept telling him that she could not serve him and this argument continued for nearly an hour. She then phoned Ms TC the manageress. She did overhear Ms TC tell the man that he was barred.
The claimant explained that at some point in time, circa 4.30 pm, and after the man had left, an ambulance arrived and the ambulance person asked for the claimant by name. She explained that she was extremely upset.
The claimant phoned and texted the owner, Mr. K later on. He did say to her that she could not refuse the man because he was a member of the travelling community, but she explained that was not the reason she refused him, she refused to serve him because he was barred. She informed Mr. K that she could/would not work her shift for the next day and he told her that he was sorry to hear that. She told him that “I can’t do this anymore”. The Tribunal asked her if she meant that she would not going to work again and she replied, “Not under those conditions”
In cross examination she explained that she did not phone the Gardaí because the man told her that if she rang the Gardaí that it would be personal. She did not phone the Gardaí. She did not phone Mr. K but Ms TC phoned him. The claimant explained that they spoke to Mr. K passing the phone between themselves. She disagreed that Mr. K told them to close the pub. She disagreed that Mr. K asked her to remain in employment.
The Tribunal heard evidence from JS a witness for the claimant. He maintains that the pub remained open for the full night.
Respondent’s case:
The Tribunal heard evidence from Mr K, the owner. He explained the he purchased the pub in 2006. The pub was closed in 2015 and was sold in 2016 (NAMA). He explained that the man in question had been barred from the pub by his brother. He did receive two or three phone calls from the claimant about the incident. He told her not to panic and to close the bar. He spoke to the manageress and the claimant on the phone and said if they are not comfortable to close the bar. His understanding was that the pub was closed. The till receipt for the last reading of the day was opened to the Tribunal. He had two or three conversations with the claimant and she told him that she was sick of working in the pub that she did not want to work. He did get one call whilst he was with an Ms X and he put the call onto speaker mode. In that call the claimant asked for her form p45. She wanted her p45 to get benefits. He asked her if she was sure, he explained to her that he had contacted the Gardaí about the situation. She told him that she was sick of it, that she was sick of the (man). He did tell her to think about it, she told him that she was sick of it and to send her her p45.
He did at some point meet the man in question and the man wanted to apologise, but he tod the man that he was barred.
The witness was cross examined.
The witness clarified to the Tribunal that he said to the manageress to close the pub if there was any trouble. To his knowledge the manageress closed the pub as he had instructed that it be closed.
The Tribunal heard evidence from Ms CB who works doing the accounts. She overheard one conversation whereby the claimant asked Mr. K for her form p45. Mr. K told her that he was sorry to hear that and if she wanted her p45 to put it in writing and she would get it along with her holiday pay. The claimant had phoned her previously and asked her for her p45 but she told the claimant that she would have to ask Mr. K for it.
Determination:
Constructive dismissal is defined in the Act as follows:
“(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 Tribunal notes that the incident must have been a frightening experience for the claimant. However the Tribunal unanimously determines that it cannot find that the employer was at fault. It was the conduct of the customer not the conduct of the employer that caused the claimant to have the experience. The claimant did not seem to fully appreciate what the employer, Mr. K, was doing, which was to manage and remedy the situation.
A lot of evidence was given in relation as to whether the pub was closed at a certain time or whether it remained open, however, the claimant stayed on until the end of her shift and the manageress arrived at the request of the claimant to deal with the situation. Therefore the Tribunal do not find that it was of consequence to the claimant whether it remained open or not.
The Tribunal do not find that the conduct of the employer entitled the claimant to resign. Accordingly the claimant under the Unfair Dismissals Act 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)