UD2400/2011, PW546/2011, TE316/2011

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

PAYMENT OF WAGES ACT, 1991

TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr P.  Hurley

Members:     Mr J.  Hennessy

                     Mr F.  Dorgan

heard these appeals at Thurles on 29 May  

                               and 2 September 2013

Representation:

Appellant:      

Respondent:   

Background:

This appeal came before the Tribunal by way of an employee (the appellant) appealing against the recommendations of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 the Payment of Wages Act, 1991 and the  Terms of Employment (Information) Act, 1994 and 2001 (references: r-107605-ud-11/GC, r-108738-pw-11/GC and r-108733-te-11/GC respectively.

At the outset the appeal under the Payment of Wages Act, 1991 was withdrawn.

The determination of the Tribunal was as follows:

The appellant was employed from May 2004 in the respondent’s business as a general labourer. By August 2007 he had progressed through the semi-skilled grade and achieved the level of skilled operative and worked in the commercial department as part of a six or seven person manufacturing team.

On 8 December 2010 the appellant’s wife was due to fly home to Poland and was to catch a bus to the airport. The bus was delayed on account of the bad weather at the time and the appellant’s wife phoned him in order to ask him to take her to the airport. The appellant asked his chargehand for permission to leave as it was a family emergency. As there was no immediate cover available in his team the chargehand declined his request until a replacement was sought by the supervisor. The appellant did not wait for the supervisor to find a replacement and left the factory. The respondent’s position was that the appellant told the chargehand that he did not care about his job.

Following an investigation held the following day at which the appellant was accompanied by two shop stewards, one of whom is Polish, and the respondent was represented by the supervisor and the human resource manager (HR) on 10 December 2010 the appellant was suspended without pay from that day until 14 January 2011 although he was to be paid for two weeks’ annual leave from 20 December 2010 until 3 January 2011.

On 8 January 2011 HR wrote to the appellant, along with all his colleagues in the commercial department, that due to a downturn in orders it would be necessary to place him on a week on/week off lay off situation and that he would be laid off for the week following his suspension and he was next required at work on 24 January 2011.

On the morning of 13 January 2011 the appellant brought a form for social welfare purposes to be dealt with by HR to the reception area. HR was unable to see the appellant but arranged with the receptionist (TR) to complete the form as soon as she could later in the day.

Approximately one hour later the appellant, accompanied by his wife, returned to reception with a second form for HR to fill out. The appellant and his wife insisted on speaking to HR and again as HR was not available TR told the appellant she would tell HR of the second form for completion.

Around lunch time the appellant and his wife again arrived at reception, confronted the relief receptionist (RR) and demanded to see HR who was now at lunch. They suggested that they would not leave until they had spoken to HR. The conduct of the appellant and his wife came to the attention of another employee of the respondent (AE) who was returning from lunch who was forced to ask the appellant and his wife to leave on account of the aggressive and hostile nature of their behaviour in shouting at both RR and TR who was returning from her lunch.

HR returned from lunch around this time and came to reception and called the appellant to a meeting room to give him the completed form, which had been left at reception earlier, and to tell him not to conduct himself in such an aggressive manner. The claimant’s wife began to berate HR whereupon HR asked the claimant and his wife to leave.

Following on from these visits to reception by the appellant one of the general managers (GM) sought written statements from those involved in the incidents of 13 January 2011. The claimant along with two shop stewards was called in by GM on the morning of his return to work on 24 January 2011 and told that there was to be an investigation into the events of 13 January 2011. At a second meeting that afternoon the appellant was asked to provide a written statement of his version of the events and he was then suspended with pay.

The appellant submitted his statement the following evening, copies of all the statements were then given to the shop stewards and on 26 January 2011 the claimant and his shop steward met GM and his alternate. At this meeting the appellant was told that it was the intention to dismiss him from the employment on account of his gross misconduct in regard to his behaviour towards TR, RR, HR and AE on 13 January 2011. This decision was confirmed in a letter from GM to the appellant’s representative on 28 January 2011.

An appeal was lodged with the respondent’s managing director (MD); this was heard on 4 February 2011. On 10 February 2011 MD wrote to the appellant’s representative expressing his disgust that the appellant had offered no apology for his misconduct on 13 January. Nevertheless on 1 March 2011 MD wrote to the appellant’s representative in the following terms:-

“……..We have decided to reinstate the appellant pending a full apology from him to the people involved in the incident. As soon as this has taken place we see no reason why the appellant can’t be reinstated”

No apology was forthcoming and the appellant obtained alternative employment in April 2011.

Determination

No evidence was adduced to suggest that the appellant made any attempt to appeal the decision to suspend him without pay from 10 December 2010. Having heard the evidence of HR, TR and RR the Tribunal is satisfied that they felt intimidated by the appellant during his visits to the respondent’s reception area on 13 January 2013 and does not accept the appellant’s contention that he was the victim on that day. After the decision to dismiss him was taken on 26 January 2011 the appellant availed of an appeal to MD and MD decided to reinstate the appellant on the condition that he apologise to those affected on 13 January. The Tribunal is further satisfied that it was entirely reasonable for the respondent to require the appellant to apologise before reinstating him. Accordingly, it follows that the termination was confirmed not by any action on the part of the respondent but on account of inaction on the part of the appellant. In the circumstances the Tribunal finds that the dismissal was not unfair and the appeal under the Unfair Dismissals Acts, 1977 to 2007 fails.

The Tribunal is satisfied that the appellant received a statement of his terms and conditions as part of his induction training on 3 May 2004. Accordingly the Tribunal affirms the recommendation of the Rights Commissioner under the Terms of Employment (Information) Act, 1994 and 2001 that the claim was not well founded.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)