Shop worker awarded €5,600 for unfair dismissal after being told to 'get out' during Storm Ophelia

The un-named businessman told the Workplace Relations Commission (WRC) that he became aware at 9.20am on the day of Storm Ophelia that the retail worker was “talking to customers, not about their business, but about her opinion that our business should be shut and that she should not be at work”.

This is disputed by the worker and the following day the owner sent the worker - who had travelled 23km from her home-place to turn up at 5.45am on the morning of Storm Ophelia last October - her P45.

However, the worker at the garage and convenience store sued for unfair dismissal and the WRC has awarded her €5,600.

WRC Adjudication Officer, David Mullis found that it was a dismissal when the worker says that she was shouted at to “get out” and that this was repeated.

Mr Mullis said: “At the time that this issue arose there were serious storms crossing the country, leaving death and damage in their wake. The fact that this (Storm Ophelia) would be the subject of conversation in a local shop is not surprising."

He said: “I cannot believe that such conversations interfered with the relationship between staff and customers. Indeed no evidence was presented that such was the case, but it was inferred."

The owner and deli counter worker offered conflicting accounts of what occurred that morning and in his findings, Mr Mullis said: “I believe, on the balance of probabilities, that her version of events is more probable. She clearly did not intend to resign.”

Mr Mullis said that the worker was entitled to the rules of natural justice in having her issues heard and dealt with in a reasonable atmosphere.

He said: “I do not believe that this was the case at the time of dismissal or in the following days.”

Mr Mullis said that the worker had an excellent two and a half year work record, according to her employer, and there was no evidence presented of any previous issues requiring the use of the disciplinary procedures against the worker.

In her evidence at the WRC hearing, the deli counter worker said that it was calm when she arrived at work but that wind increased significantly at about 8.00.a.m.

She said that she advised the shop manager, at that time, that if the weather conditions deteriorated further that she would return home as she lived 23km away.

She said that she asked the manager if the intention was to close the shop, as other businesses had done, in those circumstances.

She said that it had been reported that two people were killed in the storm and she was worried, given that the storm was tracking in the direction of the shop.

She said that some customers had inquired of her if the shop was closing.

The woman said that she was called into the owner’s office at 9.30am and asked if she was talking to customers about the storm.

She said that this was the general conversation initiated by customers, as businesses throughout the country were closing out of safety concerns.

The worker that she advised the owner that she was not complaining to customers as she had decided, with her own safety in mind, to return to her home anyway.

She said that the owner asked her if she believed he had the safety of staff in mind. She said she believed he had.

The woman said that she asked the shop manager if the intention was to close the shop. and he replied that the shop would remain open and she says that she reiterated her concerns.

She said that the manager then went into the owner’s office and that she was called into the owner's office some five minutes later.

The worker said that the owner remarked that the shop manager had told him that she was complaining to customers that he was refusing to close the shop.

The worker denied this and said that customers had been encouraging her to go home as the weather was worsening.

The worker said that the owner said that he had been monitoring the movement of the storm all morning and that the risk from the storm had been downgraded.

She thought his information was incorrect and “at this point, he jumped out of his seat and opened the office door as he began shouting at me 'go home F' and when I replied 'what? he aggressively shouted, 'go home F', again.”

She said that she asked about the following day to which she says the owner said: “what about it?”

She says that she inferred from his tone that she was being dismissed and she gathered her belongings, as he watched her, and she left the premises. She says that the owner followed her until she left the premises.

However, in response, the shop owner opened his submission by writing “I am very surprised at the referral of this matter to the WRC”.

He said that he was conscious of the safety of all of his staff. He said that he had been checking with the National Hurricane Advisory Centre from 4.00am that morning and had driven around the environs of the shop on the morning and says the weather was calm at 5.00am.

The owner said that he was in the office later that morning and was “made aware that the Complainant was talking to customers, not about their business, but about her opinion that our business should be shut and that she should not be at work”.

He said that he asked the worker to attend his office and told her that he did not consider her conversations with customers appropriate.

He said that he asked her if she wanted to go home and that, at that, she basically stormed out saying “I quit”.

He said that she did not turn up the following day and he sent a “short text” asking for her address so he could send to her P45. He says that the worker “did not at any stage indicate that she wanted to come back to work”.

The owner said that his submission clearly shows that the complainant resigned.