EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Employee - claimant UD2001/2011
Against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr M. Gilvarry
Members: Mr. D. Morrison
Mr T. Gill
heard this claim at Sligo on 18th April 2013 and 23rd July 2013
Representation:
Claimant: Mullaneys, Solicitors, Thomas Street, Sligo
Respondent: Mr Terry McNamara, IBEC North West, Pier One, Quay Street,
Donegal Town, Co Donegal
The determination of the Tribunal was as follows:-
Respondent’s Case:
The respondent trades as a service station including a delicatessen and is run by three family members. The assistant manager (KL) recalled working with the claimant. He described the claimant as having some issue every week and not an easy going person. Part of the claimant’s regular duties included closing the premises at night. The claimant was a key holder and often forgot the key having to call a manager usually (GD) who lived close to the premises. Following a number of specific incidents including the claimant failing to turn off the air conditioning, turning off the water, not correctly preparing newspaper returns and failure to comply with procedures GD met the claimant on 27th March and he was issued with a verbal warning the next day. The claimant blamed other staff members for such occurrences. He became quite aggressive and left the meeting with the intention of speaking to KL.
The above issues were a regular occurrence. Following the claimant’s failure to correctly set the security alarm he was asked to attend a further meeting on 21 April 2011. GD contended that it was second nature to the claimant and errors should not have been occurring. The claimant was always given time to explain the reasons for his failure to carry out his duties and meetings were conducted with a polish interpreter/witness. A warning was issued and the claimant accepted he made a mistake and signed an acknowledgement of the warning.
On 22nd May 2011 the claimant left the pumps and night signs on all night which allowed anyone to fill petrol or diesel. The witness received a customer complaint regarding an incident on the 23 May 2011 where the claimant had asked a customer if she had stolen petrol. He spoke with the claimant to establish the facts of the allegations made by a customer. The witness hoped that the claimant would meet with the customer and apologise however this was not agreed. The claimant was invited to attend a disciplinary meeting by letter dated 25 May 2011 and a copy of the disciplinary procedure was included. At the meeting it was explained the seriousness of the issues and a final written warning followed. The final written warning was not appealed.
The witness denied prejudging the outcome of the meeting of the 26 May 2011. Procedures regarding closing duties are verbally communicated to all employees. No written procedures for closing at night existed but all employees knew what was involved. It was accepted that the claimant had no contract of employment. The witness discussed the case with another duty manager (GD) and a fair and objective investigation was carried out. He was aware that the claimant believed GD was unhappy with him and that she had it in for him. The claimant was issued with a second written warning on 26th May 2011.
GD monitored the claimant’s performance and spoke to him on a regular basis. He regularly refused to do the tasks assigned to him.
The claimant attended a disciplinary meeting on 18th August 2011 which was chaired by KL. The claimant was unwilling to following instructions, did not comply with phone usage policy, he was closing the deli early and the respondent was unhappy with the claimant’s interactions with customers. The respondent carefully considered these matters and believed the claimant’s explanations to be unsatisfactory. The respondent felt that they had no option but to terminate the claimant’s employment with effect from 19th August 2011. He was offered a right of appeal.
The claimant appealed the decision to dismiss him and TD conducted the appeal hearing on 12th September 2011. TD read through the claimant’s file in advance. The claimant would not accept that he was responsible for any wrongdoings. TD was happy that the claimant was paid the correct rate of pay. TD contended that she conducted a fair appeal hearing. She believed that correct procedures had been followed throughout and upheld the decision to dismiss the claimant.
Claimant’s Case:
The claimant was employed as a sales assistant and commenced working for the respondent in March 2008. He initially worked part-time and three months later assumed full time work. He reported to C. He was paid €9.00 per hour and C increased that to €10 per hour after some time. He became a keyholder. No procedures were explained to him as to closing the premises in the evening.
On his first day of employment he received about ten minutes training. He learnt as he went along. He did not receive a contract of employment. KL became manager when C left. It was at this time that his rate of pay reverted to €9.00 per hour. He frequently discussed with C problems he had encountered in the workplace and to find a solution to them. Performance issues were never discussed.
He made numerous attempts to speak to management but was unsuccessful. On 17th March 2011 he wrote to the respondent seeking an increase in his hourly rate of pay. Following that letter the claimant was treated badly and the attitude towards him changed dramatically. He was given more responsibilities in his role.
The claimant attended a meeting with GD on 27th March 2011 and received a verbal warning the next day. This warning was given to him following his failure to have his keys with him to close the shop on 26th March 2011, the returns on the papers were not carried out correctly and not following procedures with a drive off. He tried to explain the difficulties he had encountered. No right of appeal was afforded to him following this warning.
The claimant attended a meeting on 21st April 2011. He was blamed for closing the shop early and inputting the incorrect code to activate the alarm and not following correct procedures with the ATM machine. The claimant said his colleague G had been responsible for the ATM that particular day. He mostly worked alongside another colleague and they shared the responsibilities. He contended that he followed standard procedures. The meeting concluded with the claimant receiving a first written warning. He signed this written warning because he felt threatened and was afraid not to sign it. KL had told him if he did not sign it he would be in trouble.
When the claimant was given a final written warning on 26th May 2011 he refused to sign it.
He was invited to a disciplinary meeting on 18th August 2011 and his wife attended that meeting with him. The claimant offered his explanations to the complaints against him of performance issues. His employment was terminated on 19th August 2011 and he was offered a right of appeal.
The claimant felt the respondent was trying to get rid of him. He appealed the decision to dismiss him to TD. TD heard his appeal on 12th September 2011. She asked him to explain to her why he should not be dismissed. He explained the problems he had encountered in the service station and with staff. He said that he had been treated badly in the previous months. TD kept nodding her head. He felt he was being ignored.
The claimant contended that he had a good working relationship with staff and customers and that he fulfilled his duties very well. He had worked with inexperienced staff and sometimes mistakes had occurred and he was afraid to ask for help from the owner.
The claimant’s colleague G gave evidence that he followed procedures correctly on the ATM machine on 19th April 2011 and also activated the alarm. G contended that the responsibility for the alarm and the ATM rests with both employees working the evening shift.
The claimant was in receipt of a job seekers’ allowance following the termination of his employment. He has been unsuccessful in securing new employment. In early July 2013 he became self-employed.
Determination:
The Tribunal carefully considered the evidence at this two day hearing.
In cases where there is a conflict of evidence, written policies and procedures can be useful in assisting the determining of the more probable version of events.
While small businesses cannot be expected to have the full panoply of H.R.specialists and exhaustive written policies, their complete absence can leave both employer and indeed employee at a disadvantage when a dispute arises.
Businesses who recognise the necessity of keeping a written record of goods received and sales made should also recognise the necessity of written procedures and job descriptions.
There was a conflict of evidence of this case, and the claimant’s contention was that the accusations against him were unfounded and that in any event much of the matters complained about were not his responsibility. The respondent’s case was that instructions were given verbally and the claimant was well aware of his duties.
The claimant had a number of disciplinary issues and clearly had a poor relationship with GD. It is clear that many of the Employers concerns about the claimant were justified, but no steps were taken to assist him. The Tribunal noted that no written list of duties or procedures were available to the claimant, nor were they given out to him even after he disputed his duties. In the Tribunal’s view this contributed to the claimant’s lack of understanding of his role. The Tribunal preferred the claimant’s evidence in this regard, and the respondent should have taken on board the claimant’s explanations and acted on them. As a result the Tribunal determines that the claimant was unfairly dismissed.
The Tribunal considers that compensation is the appropriate remedy. The Tribunal however, considered that the claimant significantly contributed to his own dismissal. In the circumstances, the Tribunal awards him €1,500.00 under the Unfair Dismissals Acts 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)