This is an extract from an application made to Manchester Tribunal Court by OE's solicitor the week before Luke Cowell's hearing:
"The Claimant's representative has informed me by letter dated 10 January 2014 that an individual named Sasha Rodoy has informed the claimant that she proposes to attend the hearing.
Ms Rodoy is known to the respondent because she is a campaigner for Government legislation regarding the regulation of the refractive eye surgery industry.
Ms Rodoy is the registered owner of a website called "Optical Express ruined my life".
In fact Ms Rodoy has never been treated by any company in the respondent group. She is understood to have had laser eye surgery with a competitor company named Optimax and to have been unhappy with the outcome.
It is understood Ms Rodoy secured a settlement from Optimax of any claims against them, and has focused her efforts on targeting the respondent in her campaign.
The operator of the website referred to is prone to making damaging and disparaging comments regarding the respondent to third parties, often untrue and without qualification.
Further this individual is prone to making comments about the directors and employees of the respondent and indeed their families.
Therefore, the respondent believes that if the hearing is conducted in public with no restrictions on its reporting, there is a very significant probability that this will result in evidence in the case and comment on witness in the case being reported on the internet and potentially more widely in the media."
After hearing the despicable comment made by Hugh Kerr (General Operations Director) describing Gillian Rutledge as: "Size twenty-two, fat and ugly cripple", I returned to London & contacted the press (I'd stupidly gone to Manchester sans laptop).
Sadly it meant I wasn't present in court on Tuesday to hear the Wee Shugster's lies in person, but the press were!
He was supposed to be cross examined on Wednesday but OE took advantage of my absence to move witnesses around.
However, I believe press attention was more important - with lots more to come when the Tribunal decision is published later this month.
Be assured that Optical Express witnesses (all paid employees) are out of their comfort zone as they lie in open court and do their best to avoid looking at me - difficult when we pass each other in small corridor en route to and fro toilets!
It was also amusing to watch David Carson giving evidence today and doing his best to avoid mentioning the laser side of OE, instead concentrating on specs and contact lenses.
EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: EMPLOYEE against EMPLOYER
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr. D. Hegarty
Mr. D. McEvoy
heard this claim at Cork on 10th April 2013
No appearance by or on behalf of the respondent.
There was no appearance by or on behalf of the respondent.
The claimant’s representative told the Tribunal that the respondent is in administration in the U.K. and that this is insolvency according to Section 247 of the 1986 Insolvency Act, (UK).
The claimant commenced employment as Regional Manager for Ireland with the respondent on 14th January 2008. Towards the end of 2010 business was slowing down and the claimant was tasked with reducing the number of staff employed. He was given a list of staff by the Human Resource Department and told that these people had to go. Some of these were invited to disciplinary meetings and told they were dismissed on the basis of unsatisfactory performance.
The claimant himself was called to a disciplinary meeting scheduled for 21st June 2011. On the Friday prior to this meeting the claimant received a phone call from “the third in (c)ommand” (TIC) of the respondent who advised the claimant not to attend the meeting but to resign instead. TIC said that the meeting would not be good for the claimant.
Subsequent to this phone call the claimant phoned another director of the respondent who told him that he (the claimant) had sent an e-mail that he should not have sent and that he should resign or be dismissed for gross misconduct. This e-mail related to sales figures, which he was entitled to send to the recipient as an employee. This director also told the claimant that the fact of his dismissal for gross misconduct would be included in any reference given by the respondent.
On the 21st June 2011 the claimant did attend the disciplinary hearing and resigned his position with the respondent. However it is the contention of the claimant that he did so under duress and to avoid the predetermined dismissal for gross misconduct. The claimant felt he was left with no option but to resign and therefore contended that he was constructively dismissed by the respondent.
Subsequently on the 12th August 2011 the claimant sent an e-mail to the respondent seeking to retract his resignation but received no reply other than his P45 in the post.
At the date of termination of employment the claimant was earning €1,442.30 gross per week.
The Tribunal is satisfied that the respondent was properly notified of the hearing. As this is a case of constructive dismiss the onus of proof rests on the claimant.
Based on the uncontroverted evidence of the claimant the Tribunal is satisfied that the employer’s unreasonable behaviour justified the claimant’s resigning and claiming constructive dismissal. Accordingly, the claim under the Acts succeeds. Having heard evidence of loss the Tribunal awards the claimant the sum of €123,000.00 as compensation under the Unfair Dismissals Acts, 1977 to 2007.
As this was a case of constructive dismissal and the claimant left his employment without giving notice to the respondent he can have no entitlement to receive payment in lieu of notice from the respondent. Accordingly the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 fails.
No evidence was adduced in respect of the claim under the Organisation of Working Time Act 1997 and therefore that claim is dismissed for want of prosecution.
Sealed with the Seal of the
Employment Appeals Tribunal
When they don't pay (surely you're not expecting them to do so?), call the sheriffs to collect on your behalf. Not only do they not mess around, they add fees on top and can force their way into commercial premises.
Would be fun seeing them slap court injunctions on OE store equipment - or even better sending Laser equipment to auction! Perhaps Ambrose could bid for it.
Constructive Dismissal – Award of €123,000 for failure to attend
29 Monday Jul 2013
In the case of Michael Melleney v Optical Express (Southern) Limited UD 65/2013, MN1802/2011, WT 695/2011, the respondent failed to attend the hearing despite being properly notified of same. The Tribunal then proceeded to hear the uncontested evidence of the Claimant and ruled that the Claimant had been constructively dismissed and awarded the Claimant €123,000 as compensation under the Unfair Dismissal Act 1977 (as amended).
An employer has little option in this case but to appeal the award/facts to the Circuit Court and face potential costs exposure if unsuccessful. It is also likely that the courts will have little sympathy for an employer who fails to attend a scheduled hearing before the Employment Appeals Tribunal unless there is a very good reason for non-attendance.
In any event we would always recommend that parties attend the scheduled hearings as notified given the potential awards exposure. Equally many parties wait a considerable length of time for hearings to be scheduled and the times allocated should be used as efficiently as possible to prevent a backlog of cases building.
Optical Express Announce Opening of New Store in Dundrum Town Centre
Optical Express' newest clinic, located in Dundrum Town Centre, opened this month. The Dundrum Town Centre, situated just south of Dublin, is the largest shopping centre in Ireland, with over 160 tenants and plans for further expansion. As Optical Express' 4th location in the Republic of Ireland, the clinic offers both optical services, with a wide array of frames, lenses and contact lenses, as well as laser eye surgery consultation services. The store employs 15 staff members.
Michael Melleney, the clinic's regional manager, highlighted the significance of such a large investment.
"[The clinic] is a huge investment in Ireland, especially in the current economic environment" he said. "It demonstrates Optical Express' continued commitment to the Irish market."
Michael Melleney who was Optical Express Ireland regional manager has won €123,000 in his employment tribunal for constructive dismissal against Optical Express (Southern) Ltd.
They didn't even bother to attend the tribunal!!