UD1189/2012, MN734/2012, WT312/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                            CASE NO.

Employee        (claimant)    

                                                                                                                                UD1189/2012                                      

                                                                                                                                MN734/2012

                                                                                                                                 WT312/2012

Against

Employer              (respondent)

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

ORGANISATION OF WORKING TIME ACT, 1997

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. T. Ryan

Members:     Mr D. Moore

                   Mr J. Flannery

heard this claim at Dublin on 5th November 2013

Representation:

_______________

Claimant(s) :                In person

Respondent(s) :           Bernie Cullinan, Pragma Advisory Limited, Anglese House,

                                    63 Carysfort Avenue, Blackrock, Co. Dublin

                                    Clarigen Limited, Hambleden House, 19/26 Pembroke Street

                                    Lower, Dublin 2

                                    Marie Johnson, Bdo Simpson Xavier, Beaux Lane House,

                                    Mercer Street Lower, Dublin 2

The determination of the Tribunal was as follows:

Summary of respondent’s case

The claimant commenced employment with the respondent as a General Operative on 24^th November, 2010. On 13^th January, 2012 an allegation of bullying was made by an employee (RA) against the claimant. The CEO of the respondent company told the Tribunal that RA had reported that the claimant had:

• Shouted at him
• Intimidated him
• Was aggressive in tone
• Told the complainant his work was not up to standard
• The complainant also reported that he dreaded coming to work because of the claimant

The CEO stated that he carried out the appeal on 20^th June, 2012 with BC, Human Resources Advisor. The complainant, RA, was not in attendance at the hearing nor was the person who carried out the investigation.

At the appeal hearing, the CEO asked the claimant had he anything to bring forward in relation to the investigation. The claimant said he did not have anything else to bring to the meeting. After looking at the evidence, the CEO felt the dismissal of the claimant was justified and that there was no other option under the circumstances.

BC told the Tribunal that her recollection of the appeal hearing was the same as the CEO’s.

Summary of claimant’s case

Giving evidence the claimant denied the allegations made against him. He stated he had been instructed by his Supervisor to provide training to RA. He said he was trying to be nice to RA and he did not know why RA was afraid. He felt there was nothing to be clarified at the appeal hearing. He did not apply for a job since his dismissal on 31^st May, 2012 as he was waiting for a decision of the Tribunal before seeking employment.

Determination

This was a difficult case for the Tribunal to hear in that some of the principal witnesses critical to hearing a claim for unfair dismissal, the person who conducted the investigation and the person who took the decision to dismiss, were not present. Neither was the complainant who made the bullying allegations against the claimant present. The only persons who gave evidence on behalf of the respondent were the CEO and BC who provided advice on human resources to the company. Both the CEO and BC heard the final appeal.

The Tribunal had to walk a fine line between hearing the claim and yet not allowing the parties stray into hearsay. This was a difficult task. The CEO gave evidence that at the final appeal hearing he asked the claimant if he had anything else to contribute other than what had been discussed during the investigation, or at previous appeal meetings. The claimant denied the allegations against him in particular he denied that he shouted at the complainant; intimidated the claimant; accused the claimant of not having his work up to standard and/or put the claimant in fear of coming to work.

In reply to a question from the Tribunal on his efforts to mitigate his loss the claimant gave evidence that he had not applied for any job as he was waiting for a decision of this Tribunal into the fairness or otherwise of his dismissal.

While the Tribunal understands that the respondent had difficulty securing the attendance of its witnesses as the company is in receivership nevertheless this added to the difficulty which the Tribunal had in hearing the case.

On the basis of the evidence that the Tribunal heard, it determines that the claimant was unfairly dismissed. The Tribunal further determines that compensation is the most appropriate remedy and taking all the evidence and circumstances into consideration measures this compensation at €1,000.

The claims under the Organisation of Working Time Act, 1997 and Minimum Notice and Terms of Employment Acts, 1973 to 2005 were withdrawn at the hearing.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)