UD1089/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                           CASE NO.

Employee -     (claimant)                                                                                   UD1089/2012

Against

Employer -     (respondent)

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr J. Revington S.C.

Members:     Mr T. O'Grady

                    Mr P. Trehy

heard this claim at Dublin on 18th October 2013

Representation:

_______________

Claimant(s) :    Mr Gerard F Burns, Burns Nowlan, 31 Main St, Newbridge, Co.Kildare

Respondent(s) : Mr. John Barry, Management Support Services (Ireland) Limited, The                               Courtyard, Hill Street, Dublin 1

The determination of the Tribunal was as follows:

Claimant’s case

The claimant was employed as a security guard and commenced his employment with the respondent on 16^th June, 2008. The respondent held a security contract with a Public Body in Cabinteely and while the claimant was working there on Friday 20 January, 2012 a member of staff was loading her belongings into her car. After she had finished loading the items, she stated to the claimant that she wished that she could wipe the video footage of her leaving the centre, so that none of her colleagues could “gloat” over her departure. On the following Monday in the canteen the claimant mentioned this statement as regards how the staff member had felt when leaving the centre.

The claimant was subsequently approached by the staff member’s Line Manager, who asked him for a copy of the recordings at the time the staff member left the centre. The claimant gave copies of the footage.

The claimant then received a telephone call from a representative of the HSE who asked him for a statement in relation to the events, on the basis that the member of staff had “demanded” that the claimant erase the footage. The representative told the claimant that the footage would be damaging against the member of staff. The claimant refused to give a statement and stated he did not want to be part of the “witch-hunt” and indicated that the member of staff in question had not demanded that the footage was erased. The representative said he would contact the claimant’s employer in order to obtain a statement.

The claimant then faxed a report on the matter to his location manager on 7^th February, 2012 indicating that he would not be issuing any statement on the matter. This was opened to the Tribunal.

Shortly afterwards, the claimant received a telephone call from AP (Operations Manager with the respondent company), who also asked the claimant to make a statement. The claimant stated he told AP that nothing had occurred and no offence had been committed. On Friday evening at 7pm on 10^th February, 2012 the claimant received a telephone call from AP informing him he was not to report for duty at the Cabinteely site on Monday, as the client indicated that they did not want the claimant working there or on any other of their sites in the future.

AP told the claimant to report the following Wednesday at the respondents Head Office for a meeting. At that meeting the claimant asked about his wages from the previous Friday up until Wednesday and stated that AP told him “there are no freebies” with the respondent. The claimant indicated that he was told by AP that whenever the respondent had a position he could work overtime. He was not given any commitment in relation to a position with the company during the meeting. The claimant formed the view that the respondent was constructively dismissing him.

The claimant told AP that he would need his cards as he would have to wait 6 weeks to obtain social welfare. The claimant subsequently received a letter to sign for his P45.

Under cross-examination, the claimant stated that AP had said “give them any statement and let them make of it what they want”. He received terms and conditions of employment but had not read the small print. He had tried to get his union involved but the person he requested was not available. He did not write a statement as there was no incident, only a conversation he had with a member of staff. The claimant confirmed that he had been advised by AP to get the shop steward involved. He felt there was no point in getting a representative, as his position was gone. The claimant denied he was offered work in Bray by the respondent and confirmed he had stated he did not want to work in shopping centres as he had previously treated badly in shopping centres. He said he had no choice but to resign and confirmed he had received the letters dated 16th February, 2012 and 23^rd February, 2012 giving him a week to consider and including the offer of alternative work.

The claimant gave evidence of loss and his efforts to mitigate his loss.

Respondent’s case

Giving evidence, AP (Operations Manager), told the Tribunal that he was asked by the client company to obtain a statement from the claimant. He only wanted the truth from the claimant. When he telephoned the claimant, he was refused a statement. AP told the claimant just to state what happened. There would have been no further action on foot of the statement. AP advised the claimant to seek union representation.

The reason AP telephoned the claimant at 7pm on the Friday night was because the client company indicated that they did not want the claimant back on site the following Monday. The respondent was open to giving the claimant further work but the claimant said he wanted to resign. AP stated that the claimant was offered further work but declined. He told the claimant at the meeting of 15^th February, 2012 that work was available.

Under cross-examination, AP stated that the HSE representative did not request particular wording for the statement. The meeting was arranged with the claimant because he had refused to give a statement. AP had encouraged the claimant to give the statement to the company client.

Determination

The Tribunal heard the evidence of the two parties and while the evidence shows no great disagreement between the parties that cannot be accounted for by different meanings, the Tribunal is of the opinion that the respondent did not handle the matter with the appropriate sensitivity and accept that he was not designated work for Monday and Tuesday and was not paid for same and consequently the employer was in breach of its duty to the employee, albeit at the behest of the HSE.

Under the circumstances, the Tribunal believes that not withstanding the fact that the respondent acted on the behest of the HSE, it feels the claimant was entitled to treat the failure to nominate a place of work for Monday and Tuesday as a breach of contract and awards the claimant €5,000 by way of compensation.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)