Evans v Dr Salman

• Jurisdiction: Ireland
• Judgment Date: 16 May 2007
• Judgment citation (vLex): [2007] 5 JIEC 1601
• Date: 16 May 2007
• Court: Employment Appeal Tribunal (Ireland)

Employment Appeals Tribunal

EAT: Evans (claimant) v Dr Salman (respondent)

Representation:

Claimant(s):	Mr. David M. Dunne, David M. Dunne & Co., Solicitors, 31 Rose Inn Street, Kilkenny
Respondent(s):	O'Dowd, Solicitors, Bridge Street, Boyle, Co. Roscommon

Abstract:

Employment Law - Unfair Dismissals - Contract of employment - Duties and responsibilities of the employee - Membership of a trade union - Unfair Dismissals Acts, 1977 to 2001 - Minimum Notice and Terms of Employment Acts, 1973 to 2001.

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD731/2006

MN484/2006

CLAIM(S) OF:

Leanne Evans, The Bungallow, Kilmanagh, Co. Kilkenny

Against

Dr. Ahmed Salman, Aurelia Cosmetic Centre, 28 High Street, Kilkenny

Aurelia Cosmetic Centre, 28 High Street, Kilkenny

Under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2001

UNFAIR DISMISSALS ACTS, 1977 TO 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:

Ms. K. T. O'Mahony B.L.

Members:

Mr J. Hennessy

Ms. E. Brezina

heard this claim at Kilkenny on 16th May 2007

Facts The claimant was employed as a receptionist in the respondents' cosmetic clinic. Issues arose when a co-worker and the claimant were told they would have to improve the business custom. The claimant joined a trade union at that time. The claimant stated that problems arose subsequent to her membership of the trade union. The respondent claims that the claimant made mistakes in the performance of her duties.

Held by the EAT that the claimant was not unfairly dismissed under the Unfair Dismissals Acts, 1977 to 2001 since the claimant failed to establish she had been subjected to unwarranted behaviour by the respondent since she joined a trade union. The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2001 failed.

The determination of the Tribunal was as follows:-

1 This was a claim for constructive dismissal.

Claimant's Case

2 The claimant told the Tribunal she commenced employment as a part time receptionist with the respondent, a cosmetic surgeon, in early June 2005. She was to become full-time if it went well. She answered the telephone, booked people in and got the patients' files. Everything was fine until Christmas and she enjoyed her job. In January, Dr S commented to her that the business had not been doing as well as it had prior to her joining. Dr. S told her that there were three choices: he could close the place or she and her colleague (JC) would have to turn the place around or he would replace both of them. She discussed this with JC and both were of the opinion that they could be in trouble. They joined a trade union around late January 2006.

3 On 3 February 2006 the trade union official (TU) wrote to Dr. S but did not receive a response. Two weeks later on 21 February Dr. S called JC, who had already received a written warning, to a meeting. The claimant was present at that meeting with JC. Dr. S dismissed JC at the meeting. TU should have been at the meeting. Dr. S told the claimant if she wanted to hand in her notice he would gladly accept it. After lunch a client telephoned enquiring about a procedure. Dr S was standing nearby listening so the claimant was intimidated and could not answer the client. He grabbed the telephone from her and answered the customer's questions and then handed the telephone back to her to make an appointment for the client. When she had finished with the client Dr. S reprimanded her for not having the information, which the client wanted. TU had suggested to her earlier that day to leave if anything happened. Dr. S had never raised his voice to her before this. She was confused and upset so she left. She telephoned JC and they both spoke to TU who tried to arrange a meeting with Dr. S to find out what was going on. Dr. S denied to TU on that telephone conversation that he had raised his voice to the claimant. Dr. S could not meet with TU and nothing was ever done about it. She had not received full training. Dr S told her to choose a few items from the respondent's brochure and he would go through it with her on Tuesdays but this never happened.

4 There was no change in the business since JC and the claimant started. JC and the claimant made efforts to promote the respondent's business: they distributed brochures and leaflets to the various businesses and considered advertising but Dr. S said that was too costly. She went to the credit union and they had an advertising facility on the internet. TU advised her not to...