EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Jonathan Costello – claimant UD646/2012
against
Absolute Drain Services Limited T/a Greenday Environmental – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern BL
Members: Mr B. Kealy
Mr Al Butler
heard this claim at Dublin on 26th August 2013 and 27th February 2014
Representation
Claimant: Mr William Joyce of Business & Commercial Solicitors,
32 Lower Leeson Street, Dublin 2
Respondent: Mr Eoin Martin of Lyons Dermody Solicitors,
43 – 46 Parnell Square West, Dublin 1 (on first day only)
The determination of the Tribunal was as follows:-
The fact of dismissal was in dispute.
Claimant’s Case
The claimant gave evidence. He commenced working for the respondent, as a truck driver, in December 2009. There were no issues until 27th February 2012, the day he returned to work after a week on sick leave.
The claimant went upstairs and gave the managing director his sick note. The managing director accused the claimant of breaking the truck by driving it with the PTO engaged. The claimant denied doing so. According to the claimant there had been problems with the truck since the respondent imported it. The claimant was not given details of when he was alleged to have driven the truck with the PTO engaged. Also a light flashes on the dashboard when the PTO is engaged.
The claimant did not receive a letter from the managing director inviting him to a disciplinary hearing. The managing director told the claimant that he could accept 4 weeks’ pay or he could walk. The claimant told the managing director that he would get back to him. That was the last day he worked for the respondent. In April, the claimant received his p.45 and the money.
The claimant gave evidence of his loss.
Respondent’s Case
The managing director gave evidence. The respondent’s business is a drain clearing service. The problem with the truck occurred in November 2011. There were floods in the city centre and the claimant was sent to pump out a basement. The claimant phoned the managing director to tell him that the truck had broken down. The truck could not be driven so it had to be towed and it took several weeks to repair. The main cog for driving the PTO needed to be replaced and it had to be ordered from the UK. The PTO is used for working the vacuum at the back of the truck.
The managing director was given a verbal report in November that driving the truck with the PTO engaged had caused the breakdown. He withheld part of the payment for the repair pending a written report. The written report is dated 16 February 2012.
In order to do the right thing, the managing director waited until he got the written report before approaching the claimant to bring him to a disciplinary meeting. There was no investigatory meeting. The managing director got the beacon on the truck’s dashboard fitted to prevent the problem arising again before the truck was back on the road.
The managing director composed the letter dated 28 February 2012 on the Friday before. On 27 February 2012 the managing director gave the letter together with the report on the truck to the claimant. The managing director intended having a disciplinary meeting with the claimant on the following day. The claimant wanted the matter settled there and then but then he threw down the papers and walked out. The claimant did not say that he wanted to think about it.
The managing director no longer wanted the claimant working in the business but he wanted the claimant to train his replacement before he left. The managing director hoped that the claimant would agree to leave and to train his replacement. The managing director had been seeking a replacement for the claimant and had taken on a driver under the Jobs Bridge scheme while the claimant was out sick. The replacement driver did not stay long.
The supervisor gave evidence. He phoned the claimant shortly after his meeting with the managing director asking that he return his keys. The claimant never returned his keys. The claimant denied this statement.
Determination
The Tribunal carefully considered the evidence adduced. It seems that the managing director formed a view that he no longer wanted to employ the claimant after the truck the claimant drove needed to be repaired in November 2011. However, the managing director did not invoke any disciplinary procedure neither did he give the claimant details of the allegation against him. Having considered all the evidence the Tribunal finds that the dismissal of the claimant was unfair.
The claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the claimant is awarded the sum of €40,000.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)