EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
EMPLOYEE UD1607/2011
Against
EMPLOYER
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Ms. A. Moore
heard this claim at Letterkenny on 10th April 2013 and 11th June 2013
Representation:
_______________
Claimant:
Respondent:
The determination of the Tribunal was as follows:-
Background:
The respondent in this case is a large busy service station. The claimant was employed as a forecourt attendant on a full time basis. As the dismissal was in dispute it fell to the claimant to make his case first.
Claimant’s case:
The claimant gave evidence of starting work for the respondent in 2001. Initially he had no contract of employment but signed one later in 2009. He received a written warning from the respondent in December 2009, when he was accused of ignoring customers and using profanities. He denied the allegations at the time but accepted the warning.
On Monday 18th January 2011 he attended work as normal at 7am. Breaks were flexible and the claimant told the Tribunal that normally after 10am there was adequate staff to take a break. A notice had gone up sometime previous to regulate breaks and while it was necessary it was not always practical. He would use his common sense take a break when it was quiet. On the morning in question he was serving a customer, it was around 10am and when he went to the tills with the customers cash and waited to get change he was told by LC the duty manager that he should be going on his break. JM son and employee of the owner then told him that he should be going on his beak, the claimant said he was busy, JM s reply was “if you don’t do what your told there is no point in being here”. The claimant asked JM if he was sending him home and was told yes, he was being sent home. He knew there would be repercussions and then was told “come in on Wednesday, your wages will be ready”. The claimant was normally paid on a Thursday and felt he was being sacked.
On Wednesday he called in to the premises and felt he was blanked by staff. He asked M, who was behind the counter if his wages were there and was told no, come back tomorrow. He attended the following day and FG, a supervisor, gave him an envelope that contained his wages. The claimant stated that he looked for a letter of dismissal to take to Social Welfare but instead received a letter inviting him to a meeting the following day. The letter said that he was suspended on full pay. He telephoned his employer to say he was unavailable to meet on the Friday and sought legal advice.
At an investigation meeting of 1st February claimant brought along his solicitor to the meeting. Neither of the two people from the initial incident was present. He had been provided with statements that had been given by the other employees. The meeting was acrimonious, his solicitor wanted to confirm his client’s status with the company and was told “that’s what we’re here to decide”, he left the meeting after a few minutes. The claimant considered any further meetings pointless and said that he felt he was “a goner anyway”.
Under cross examination the claimant confirmed he had worked for 9 years for the respondent and found them to be fair and reasonable employers. He had a previous warning and didn’t deny using profanities. Records show that the claimant was on a 9am shift start not 7am as stated. Asked why he didn’t go on his break he said he couldn’t the first time LC told him to and then when he came back in from the forecourt JM interjected and it all snowballed from there. Asked if he was causing a scene and if he was abusive towards LC he said that was untrue. He did have his hands on the counter when dealing with LC.
He refuted giving his solicitor instructions to look for €10,000 and said that he was never told he was suspended.
Respondent’s case:
LC duty manager, gave evidence as to the incident on 18th January. Part of her job was to look after breaks. She stated that he had not given an accurate description of what had occurred. When the claimant was informed of the need to take his break at 11am he informed her that he had no intention of doing so, he was going at 12. When she advised him that it would have a knock on effect for others he put his hands on the counter, leaned forward and said “I’ve told you before, I’ll go on by break at 12. He was aggressive in his manner and JM stepped in, she was glad that JM was there to calm things down and if he hadn’t been there she would have called him.
LC told the Tribunal that she heard the interaction between both and JM said “if you can’t follow orders, head home”. The claimant asked “are you sending me home”? and again JM said if you can’t take instruction, go home.
Under cross examination LC stated that it was a quiet when she asked him to go on his break. What he stated in evidence was not how it happened. There was only one conversation, it was not that the claimant returned after giving change to anyone. She prepared a statement for her employer the following morning.
JM son of the owner and deputy manager gave evidence of overhearing the conversation with LC and the claimant. The claimant was aggressive and it wasn’t fair for him to speak to her like that. JM’s parents were on holidays but returning the following day. Only they made decisions regarding the business so told the claimant to go home to cool off. The claimant asked if he was being sacked and JM told him that the respondent would be in contact with him. He also said that his wages would be available on Thursday. He spoke to his parents on their return and prepared a written statement.
Under cross examination JM said he got on well with the claimant. The day previous to the incident the claimant had also refused to go on break. He tried to defuse the situation but knew he wold have to speak to his parents about it. JM was unaware that the claimant had called in on the Wednesday but wages would never be done on that day, it was always on a Thursday, no matter what.
JG was told of the incident by his son in a telephone conversation on the 18th. He prepared a letter that was left with the claimant’s wage packet for a meeting that Friday. JG tried to telephone the claimant and received a call saying he was unable to attend a meeting at short notice. JG remembers telling the claimant that he hadn’t been “paid off” meaning that he hadn’t been sacked. A letter was sent to the claimant along with the employee statements and a further meeting was arranged. The claimant arrived to the meeting with his solicitor. JG was shocked, it was all very formal, he thought they were there to sort things out. The claimant’s solicitor asked what his status was and JG said that he was suspended. The solicitor continued to ask questions and then halted proceedings, the meeting broke down. JG was shocked at a request for €10,000. JG wrote to the claimant but got no reply. His wages continued to be processed until he got a letter from the claimant’s solicitor saying that he was not returning to work.
Determination:
The Tribunal has carefully considered the evidence adduced. The claimant brings a claim seeking relief under the Unfair Dismissals legislation arising out of an incident which occurred on 18 January 2011. Whilst the onus rests with the employer to demonstrate that it acted reasonably and fairly in all the circumstances this does not preclude the claimant’s own obligation to act in a reasonable way. The Tribunal does not find that the words spoken to the claimant on that day amounted to clear words of dismissal. In this regard the Tribunal must, on balance of probability find that the claimant was not dismissed by the respondent on 18 January 2011. Therefore the claim under the Unfair Dismissals Acts, 1997 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)