EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Employee - claimant UD200/2012
MN702/2012
WT304/2012
Against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 to 2005
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. Levey B.L.
Members: Mr M. Noone
Ms M. Mulcahy
heard this claim at Dublin on 31st May 2013
and 11th July 2013
Representation:
_______________
Claimant: Mr. Darragh MacNamara B.L. instructed by,
Lawlor O'Reilly & Company, Solicitors, 43 Upper Gardiner Street, Dublin 1
Respondent: Mr Aaron Shearer B.L. instructed by,
Mr. Michael J. Kennedy, Solicitors, Parochial House,
Parochial Avenue, Baldoyle, Dublin 13
Background
As this case is one of constructive dismissal it is up to the claimant to give evidence first. The claimant and the respondent owner are half brothers. The claimant was initially employed in 2006, after leaving his employment he re-commenced in 2008.
Claimant’s Case
The respondent manufactures, supplies and installs steel shutter doors. The claimant was initially employed as general operative. He was promoted to driver and also assisted in installing the steel doors. The claimant’s employment progressed well until 2011. The respondent’s behaviour changed towards the claimant when a new general manager was employed (NP).
The respondent owner (DmK) singled the claimant out, calling him names such as neanderthal, gobs***e and an idiot. On one occasion the powder coating on the steel doors had not turned out correctly; after the claimant gave his opinion on the problem DmK said ‘shut up you neanderthal’ in front of 10 staff.
In June 2011 the claimant made the mistake of not levelling the sills before a door was fitted. The claimant was informed of the mistake and shouted at with very abusive language by DmK and informed that the cost of the repair would be deducted from his wages.
In July 2011 the claimant attended a job for an important client. He drank 3 cans of alcohol the night before and had not shaved that morning going to work. The job could not be completed as there was a fault with the motor for the door. The electrician, also an employee of the respondent instructed the claimant to go home as he could not find the problem with the motor to fix it.
Between 8 and 9 pm that evening DmK contacted the claimant and accused him of coming to work after drinking 10 cans therefore still under the influence of alcohol and accused him of not being presentable at work as he had not shaved. DmK told the claimant that he no longer had a job. The claimant responded by saying ‘if you’re firing me write me a letter and give me my P45.’ DmK said he would strangle the claimant with a letter. Another member of staff lives close to the claimant so he dropped the respondent’s keys and van to him as instructed.
On Sunday the 7th of August the claimant had a meeting with the general manager NP. NP contacted the claimant for the meeting. He informed NP that he wished to return to work and be treated properly. NP shook the claimant’s hand and said ok. The details of the warning letter were discussed at that meeting; the crashes and the ‘levels’ job. The claimant returned to work on the 8th of August with no problems. He was off on the 9th of August.
On the 10th of August the claimant went to work and got the van organised for the day. The claimant was assisting another member of staff when DmK approached him. DmK was “in my face” so the claimant told him to “get the f**k out of my face.” DmK then grabbed the claimant, strangled him and continued to assault him until a member of staff stepped in and stopped the altercation. The claimant was stressed and bleeding so stepped outside with the intention of calling the guards. Someone asked him not to call the guards so he did not. He was instructed to leave the premises. The witness to the altercation is unavailable.
The claimant left the premises and attended his GP who advised him not to return to work. He was both mentally and physically strained. The claimant went to the Northside Centre for the unemployed to get legal advice as he wanted his job back.
A meeting took place on the 17th of August between the respondent and the NCU. An agreement was reached that the claimant could have his job back. This agreement was later qualified by insisting the claimant accept a final written warning on his return to work. The NCU advised the claimant not to return to work with the final warning as any indiscretion would mean the end of his employment. The claimant, at all times referred to the assault and his treatment as the reasons he was not in work.
The claimant had no further contact with the respondent. He resigned through his representative by letter of the 3rd of February 2012. In February 2012 after his resignation the claimant reported the incident of the 10th of August 2011 to the Gardaí.
The claimant gave evidence of his loss and attempts to mitigate his loss.
The claimant had crashed the company van on two occasions. He accepts that he ‘made a bags’ of the job where he failed to check the levels. The claimant did not shave before attending the job with the ‘important client’ but disputes being under the influence of alcohol. Although the claimant is related to the respondent he viewed them as having a normal working relationship regardless of the fact that the respondent bought the claimant a car, paid for his insurance and provided him with loans.
JC of the Northside Centre for the unemployed (NCU) gave evidence. The claimant attended the NCU office and informed JC that he had been assaulted and that there were a number of other issues with his employment. JC advised the claimant to call the Gardaí in relation to the assault. The claimant did have a “desire” to go back to work.
An initial meeting was arranged for the 17th of August with the respondent to “clarify what happened and try for a resolution.” JC’s colleague mentioned the assault to DmK who replied that it did not happen and the claimant was a liar. It appeared that there was “good will” at the first meeting to find a resolution but “something changed” at the second meeting of the 30th of August 2011. At the second meeting JC got the impression that “the claimant was not going back.” The assault was not the main issue at the second meeting as it “was for the Gardaí to investigate.” JC advised the claimant in September 2011 that he could now resign as it was constructive dismissal. JC did not write the minutes of these meetings as provided to the Tribunal.
Respondent’s Case
The General Manager (NP) with the respondent gave evidence. NP was employed to run the sales and marketing side of the business. As the business expanded he took over the financial side of the business and a service manager was hired. NP looked after the staff and scheduling while DmK looked after workshop and production side of the business. NP was aware of the personal relationship between the claimant and DmK but maintains that all the staff were treated the same; the claimant was never singled out.
In June 2011 the claimant was promoted to the position of ‘fitter’. The claimant was awarded this promotion as his work had improved and he was showing a good work ethic. The claimant’s attitude to his job and work changed when “he came into money”. NP was not aware of any bullying or harassment and did not call the claimant any names.
The claimant contacted NP to arrange the meeting on Sunday the 7th of August 2011. NP would never arrange a meeting for a Sunday but facilitated the claimant’s request on this occasion. At that meeting four issues were discussed. They were the 2 crashes, the job where the sills were not levelled and the fact that the claimant appeared for work for the important client late, unshaven and smelling of alcohol. All the incidents had taken place within a 2-3 month timeframe. NP had not considered dismissing the claimant; it was a “pull your socks up” meeting although dismissal did arise as this was not the first time there had been problems with the claimant. At that stage the employment relationship had “come to a head” so the meeting was necessary to discuss the claimant’s attitude, the incidents and the fact that the promotion was not working out. It was intended that after the meeting the claimant’s attitude and work would improve. The claimant did not raise any grievance at that meeting.
The official written warning letter of the 9th of August 2011 outlined everything discussed at the meeting. The warning letter was given to the claimant in NP’s office. As there was a personal relationship between DmK and the claimant, DmK did not get involved with any issues concerning the claimant.
NP saw the claimant the morning of the 10th of August 2011 but did not speak to him. NP did not witness any interaction or assault between the claimant and DmK. NP was informed the claimant had left the premises; as the claimant had walked out before this did not overly concern NP and he arranged cover for the claimant’s work. There was no indication that any sort of incident had taken place.
NP was contacted by the NCU shortly after the 10th of August. The NCU wanted to get the claimant ‘back to work.’ Two meetings were held with the NCU on the 17th of August and the 30th of August 2011. There was no mention of an assault at either meeting; the only discussion was in relation to getting the claimant back to work. There was no accusation of bullying and harassment made against DmK or any mention that the claimant did not want to return to work for any reason. The minutes of the meetings compiled by the NCU do not make any reference to an assault.
The claimant would not accept the warning letter so he did not return to work. NP was shocked when he saw the detail and accusations contained in the claimant’s resignation letter of February 2012. There was never any mental or physical abuse within the respondent. The resignation did not make sense to NP as the claimant wanted to return to work on the 30th of August 2011. NP asked all the staff if they had ever witnessed or were aware of any bullying or harassment within the respondent; all replied that they had not. None of the staff witnessed or were aware of any assault on the claimant.
The Managing Director (DmK) of the respondent gave evidence. DmK categorically denies that any assault took place. DmK never called the claimant any names as given in evidence, ‘it is not the way we operate.’
DmK managed the production side of the business so had very little to do with the claimant on a day to day basis due to their personal relationship. DmK never wanted their working relationship to interfere with their personal relationship.
The claimant and the other staff working were aware that they were being audited on the job for the important client. At 7.00pm DmK rang the claimant who said the job had gone well. DmK was later made aware that the claimant had arrived late for work, was drunk and unshaven so called him again at 9.00pm that evening. DmK informed the claimant what had been reported about him and asked for an explanation. The claimant responded by saying ‘no one’s going to f***ing tell me what to do.’ DmK instructed the claimant to leave the keys to his company van in a staff member’s house (neighbour) as he was concerned that the claimant had been driving under the influence of alcohol and did not want to risk it happening again. DmK did not instruct the claimant that he no longer had a job during that phone call. The claimant did not attend work the following Monday as expected as DmK took the claimant saying ‘f*** off’ as him not returning to work.
DmK did not threaten the claimant or say that he would choke him. The claimant accepted that he had been drinking, late and hadn’t shaved. DmK accepts that the claimant could have been sent home by the electrician.
DmK was not party to the meeting on the 7th of August or the warning letter that resulted from it. DmK did not assault the claimant on the 10th of August, he was shocked when he was contacted by the Gardaí 6 months later; no charges ever resulted from the accusation. DmK saw the claimant that morning but was informed that the claimant had left the premises.
DmK attended the meeting with the NCU on the 17th of August. There was no mention of an alleged assault at that meeting; they only discussed how to get the claimant back to work. The claimant wanted to return to work at that point. The only reason the claimant did not return to work is because he would not accept the warning from the respondent.
There were no contracts of employment or a grievance and disciplinary procedure in place at the time of the claimant’s employment. If there were any interpersonal issues they were sorted out locally or a staff member could go to a manger with a difficulty.
Determination
Having heard all the evidence in this case the Tribunal finds that the conduct of the employer was less than exemplary. However the burden of proof in a constructive dismissal claim presents a claimant with a high bar to overcome. The Tribunal finds that the claimant did not reach the bar as the only reason he did not return to work was that he would not accept the warning letter from the respondent.
As the claimant resigned his position with the respondent his claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 fails.
No evidence in relation to holiday pay was presented to the Tribunal and the claim under the Organisation of Working Time Act, 1997 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)