UD546/2011

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                 CASE NO.

                                                      UD546/2011

EMPLOYEE     -appellant                                        

against the recommendation of the Rights Commissioner in the case of:

EMPLOYEE

-v-

EMPLOYER                     -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Mr. E.  Murray

Members:        Mr. W.  O'Carroll

                        Ms S.  Kelly

heard this appeal at Limerick on 22nd January 2013

Representation:

Appellant:  Ms Deirdre Gavin BL instructed by Kieran Donovan solicitor

  Dorothy Tynan & Co, Solicitors, 78 O'Connell Street, Limerick

Respondent:  Mr. Michael Cusack, Helix HR, Deerpark, Clarecastle, Co. Clare

This matter came before the Tribunal by way of an appeal from a decision of a Rights Commissioner ref: r-094547-ud-10, dated the 10^th of January 2011. 

Background:

A preliminary point was raised by the Respondent that the appellant did not bring his application within the six month period provided for in the statute. The Rights Commissioner upheld this point and declined jurisdiction.  The Respondent on the other hand contends that the Appellant was not dismissed at all and regards the Appellant as being on extended sick leave.

This division of the Tribunal felt that it could not make a determination of whether or not they could uphold the Rights Commissioner’s finding without hearing the substantive evidence in the case. 

Consequently, evidence was taken from the Appellant in which he stated that he was fifty six years of age and was employed by the Company which is a wood products provider, since 1979.  He said that he had worked under the present managing director and his pre-deceasor who was the present individual’s father. 

He was put on a three day week in 2007.  There were four men working there at the time.  He said that by all the workers going on a three day week, all four jobs could be retained. He said that things got busy again and they were put back to five days but there was a pay cut of 10% sought.  The Appellant said he was very unhappy about the pay cut but accepted it nonetheless.

In 2009 a few extra helpers were taken on. As far as the Appellant was aware these men were signing on the dole and working at the same time.  This caused dissatisfaction both to him and to the other permanent workers.  He made representations to the production manager, at the time when the general manager was on holidays, indicating his dissatisfaction with the situation as he understood it.  He also spoke to one of the workers who he understood to be drawing social welfare benefits.  As a result, this worker decided to leave the company. 

When the managing director returned from holidays he was upset that the Appellant had interfered in the ordinary running of the company and rebuked him.  On the 5^th of November there were exchanges which culminated in the Appellant being told by the managing director to “F*** off out to your car and go home for yourself”.

He asked the MD “have I just been sacked”?. He was told that if he didn’t like the circumstances of his employment that he could leave. All of these words were said in a time of raised emotions. When the Appellant got back to his bench he couldn’t continue working, drove home and never returned to the factory again. 

He acknowledged that he had received telephone calls from the managing director but declined to accept same. He was also aware that his wife had been spoken to by the managing director. Subsequently he contacted the production manager asking if there was any possibility of being given a redundancy package.

He went on sick benefit for a year and a half and is now on job seekers allowance.  He has applied for other jobs, but would not consider returning to his former place of employment under any circumstances.

The managing director of the company gave evidence that he worked with the Appellant since 1979.  He found that he was a “superb worker” and a “good guy”.  He had suffered from depression over the years and was supported by the company through those times. 

He described how he had come back from holidays in November and found that one of the temporary workers who was needed to maintain production levels had left because of representations that the Appellant had made to him.  He was upset and annoyed by this and spoke to the Appellant.  He did not disagree with the content of the exchange that took place between them as described by the Appellant. 

Subsequent to the Appellant leaving the workplace he tried to contact him on his mobile phone on a number of occasions but the Appellant declined to take his calls.  He also asked the Appellant’s wife to have the Appellant contact him, but the Appellant never did.  He said that there was still a job in the company for him if he so wished.

He said that at the time these events occurred, that he was under extreme pressure because business had declined sharply and in the week when the other worker left they had a big order that they had to fill and he was afraid of not being able to complete the order.  His recollection was that when he was asked by the Appellant was he sacking him he said “go and do your job and I will do mine”.  He was surprised when he discovered that the Appellant had left the premises.

Determination:

This claim is one of constructive dismissal.  A constructive dismissal arises where an employee terminates his contract of employment with his employer in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer. 

The Tribunal in this case having considered the evidence are not satisfied that the Appellant has established sufficient grounds to justify the termination of his employment.

Consequently, the Appellant’s claim for constructive dismissal fails.  The appeal under the Unfair Dismissals Acts, 1977 To 2007, is dismissed.  The issue in relation to the time limit is therefore moot and the Tribunal is not required to make a finding in relation to it.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)