UD1046/2012, MN674/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                           CASE NO.

EMPLOYEE                                                                                                                                                              UD1046/2012

against                                                                                                                   MN674/2012

EMPLOYER

Under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr C. Corcoran B.L.

Members:     Mr D. Peakin

                   Ms N. Greene

heard this claim at Dublin on 18th December 2013

Representation:

_______________

Claimant:       Mr Marcin Szulc, Rostra Solicitors, 78 Benburb Street, Smithfield, Dulbin 7

Respondent: Mr Tiernan Doherty, IBEC, Confederation House, 84/86 Lower Baggot Street,            Dublin 2

Background:

The respondent is a large warehouse facility which dispatches orders to various retailers throughout Ireland. The claimant was a picker who picked and packed orders for dispatch.

Respondent’s case:

The warehouse manager gave evidence of the occurrence of re-structuring in the warehouse because of the sell- off of a large retailer. The claimant worked on that particular contract so it was necessary for him to move to a new contract for a retailer that was expanding. New technology was introduced and the claimant was asked to re-train with AC. The claimant refused to take the training, which would take approximately one hour, from AC because of a previous incident between both parties. The claimant was taken to HR and asked why he was refusing to take instruction from his supervisor. He said it was because of the previous incident. He was suspended on full pay, pending an investigation.

The claimant was called to a disciplinary meeting on 25^th March. He again refused to train with AC. The warehouse manager said he would have some other party over-see the training. The claimant was told if he did not agree or failed to take part in the training it could lead to his dismissal. HR made a decision to dismiss the claimant as and of the 30^th April. He was called in to work on that day, it was his last day of work. He was given leave to appeal the decision within 10 days.

Under cross examination the warehouse manager told the Tribunal that the warehouse staff were mainly non-nationals, with a team of agency workers on stand-by for busy periods. AC was a general operative, the same grade as the claimant. The incident that occurred was over a fork-lift and the claimant was abused verbally by AC who roared obscenities at him. No verbal warnings or written warnings were ever given to the claimant. No final written warning or other sanctions were considered. Put to the warehouse manager that the claimant refused to be trained by AC but did not refuse training he said that he was told that he could be dismissed if he failed to take instruction and he understood the implications. Asked if he spoke with AC as part of his investigation he said “no”.

AP who heard the appeal told the Tribunal that his only role was to either overturn or override the decision. He didn’t revisit the investigation re AC or talk to him. There was nothing new in what the claimant said and he upheld the decision to dismiss for gross misconduct.            

Claimant’s case:

The claimant (with the aid of an interpreter) gave evidence of the incident with AC. He was given instruction from BG to take the forklift and move 5/6 pallets. It is a company forklift but AC got really mad roaring to put it back now, he called him terrible, horrible names. The claimant reported the incident to BG who wrote up notes and took it to HR. It wasn’t the first incident between AC and members of staff but nothing was done about it, he heard nothing more from HR or the notes given to them by BG.

At the meeting of 30^th April he was asked if he was going to change his mind. He told them he was not going to do any training with AC and was then told he was dismissed for gross misconduct. He was told to leave the respondents warehouse straight away.

Under cross examination the claimant told the Tribunal that he asked to take a friend from the warehouse with him because he did not understand everything that was going on. His friend has worse English that him and when he asked for an interpreter he was told “no chance”. AC was let do whatever he wanted in the warehouse and he (the claimant) had been left with nothing, he was now being treated for depression and had been unable to work since.

Determination:

Based on the evidence adduced at the hearing it is evident that the respondent company did not utilise fair procedures in dismissing the claimant from his position. The Tribunal find that procedures were flawed and that there was a deficiency in company procedures. No alternatives were ever considered and natural justice did not prevail. No proper enquiry or follow up to the incident took place. The case, from the evidence, did not amount to gross misconduct.

In such circumstances the Tribunal finds the appropriate award to be compensation in the sum of €25,000 under the Unfair Dismissals Acts, 1977 to 2007.

A further €928 is awarded for the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)