EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Paul Luz UD1198/2013
against
Reconair Services Limited
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. D. Hayes BL
Members: Mr. L. Tobin
Mr. N. Dowling
heard this claim in Dublin on 30 April 2014 and 2 September 2014
Representation:
_______________
Claimant(s):
No legal or trade union representation
Respondent(s):
Mr. David Walsh, David Walsh & Co., Solicitors,
109 Ranelagh, Dublin 6
The determination of the Tribunal was as follows:-
An unfair dismissal claim was brought to the Tribunal in respect of a mobile service engineer who worked for the respondent from June 2005 to late October 2012. Installation and maintenance of equipment such as boiler systems figured in his work. He could be given an assignment for a period of weeks during which he could be called, in accordance with a supply contract, to respond quickly to issues such as breakdowns at other sites. This eventuality would necessitate his leaving one site without any prior notice to him so that he could react at once to an emergency elsewhere. Such calls caused him a lot of stress because he could spend a lot of time finding parking before carrying his tools to a city centre site only to be suddenly called away from his work at that site but they were a common feature of his duties because he alone of the respondent’s employees was a registered gas installer.
The claimant was assigned to do maintenance for one of the respondent's clients at a site in the Dublin City centre at the start of October 2012. To avoid boiler breakdown pumps, chillers and air handling units had to receive maintenance. The chiller unit at the client's premises required an operative who had “F-gas certification” but the claimant (who did not have it) was sent there.
For the next couple of weeks the claimant worked at the client's premises but was called away to over a dozen other sites. On Monday 15 October he got a request from the respondent that he go to sites in Kilkenny and Wexford but declined on the grounds that he needed to finish his Dublin work. He told ST (his supervisor) that he was being hampered in doing the Dublin work by repeatedly being called away to other sites. However, ST insisted that the claimant go to Kilkenny and Gorey on Tuesday 16 October with the result that the claimant had not checked the chiller unit when he signed off at the Dublin site. The claimant was subsequently dismissed because he delayed in telling the respondent about this so that the respondent had to incur significant cost in checking all of his work with that client because it felt that it could no longer have full trust and confidence in him.
Determination:
The respondent company is engaged in the service and repair of air-conditioning and refrigeration systems. The claimant was employed as a service engineer from June 2005 until October 2012.
In October 2012 the claimant was working in Dublin city-centre undertaking preventative maintenance on the air-conditioning system of one of the respondent's clients. On 15th October he was told that he was required to travel the following day to counties Wexford and Kilkenny to deal with other clients. Without having finished his work in Dublin, the claimant signed it off as having been completed. The client telephoned him on the 16th October to discuss a problem. On foot of their conversation the client booked a service call with the respondent. A different service engineer thereafter attended and he reported low levels of refrigerant gas. When asked about this by MC, the respondent's managing director, the claimant told him that he had not, in fact, checked this particular item. The claimant was subsequently suspended as a disciplinary process commenced. It is noteworthy that the respondent did not have any written disciplinary policy in place.
The disciplinary hearing took place in front of MC on 23rd October 2012. The claimant appears to have been forthright in his approach to the disciplinary hearing. In his defence he referred to difficulties he had been facing in dealing with preventative maintenance while being frequently called away to deal with service calls. The claimant was subsequently
informed that his conduct warranted "termination without notice" of his employment. The Tribunal was told of the difficulties caused for the respondent in retaining the custom of that particular client. The claimant was told that he had a right to appeal this decision. The claimant exercised this right of appeal. There was a delay in dealing with the appeal. The reason for this delay is not relevant for the purpose of this determination.
Present at the appeal were SC and CC, two of the respondent's other directors, along with MC and the claimant. No minutes were taken of the appeal hearing. MC, who had conducted the original disciplinary hearing, presented the case against the claimant. The claimant did not dispute in any great detail the facts outlined by MC. In essence the claimant was appealing against the severity of the penalty imposed. The decision of the appeal hearing was to confirm the original decision to dismiss the claimant.
It was the claimant's evidence that he did not hold the qualifications necessary to deal with refrigerated gases and that he ought not, therefore, have been asked to complete this preventative maintenance. While this may well have been so, it does not help to explain why he purported to have completed the maintenance in good order.
The Tribunal is satisfied that the disciplinary hearing undertaken by MC was substantially fair. While the Tribunal was told that the decision taken at the appeal hearing did not involve MC, the Tribunal is satisfied that it was a defect in procedures to allow MC have such a central role in the appeal hearing, particularly in circumstances where it was his decision that was being appealed and where he was the managing director. The Tribunal is also satisfied that the sanction of summary dismissal was a disproportionate one in the circumstances, where the claimant had a previously good record. The claimant should most certainly not have done what he did but he did so from pressure of work and immediately owned up to his mistake. In the circumstances the Tribunal is satisfied that the claimant was unfairly dismissed.
The Tribunal notes that the claimant quickly secured alternative employment, albeit at a lower gross salary. The Tribunal is satisfied that compensation is the appropriate remedy and in respect of his claim under the Unfair Dismissals Acts, 1977 to 2007, and awards him the sum of €5,000.00 (five thousand euro) as being just and equitable, in all the circumstances of the case.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)