EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Employee MN594/2012
- Claimant UD808/2012
WT260/2012
against
Employer
- Respondent
under
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
UNFAIR DISMISSALS ACTS, 1977 TO 2007
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr M. Gilvarry
Members: Mr. D. Morrison
Ms. A. Moore
heard this claim at Donegal on 30th September 2013
Representation:
Claimant(s) : Mr. Alastair Purdy, Purdy Fitzgerald Solicitors, Kiltartan House, Forster Street,
Galway
Respondent(s) : Mr. Eddie Keenan, Construction Industry Federation,
Construction House, Canal Road, Rathmines, Dublin 6
The determination of the Tribunal was as follows:-
At the outset the claim under the Organisation of Working Time Act, 1991 was withdrawn.
Background:
The claimant was employed as a Civil Engineer and reported directly to the Managing Director (MD) of the respondent company. Problems seemed to arise between the claimant and the Managing Director (MD). A conversation, allegedly, took place between MD and the claimant on the 1st March 2012 regarding the claimant’s competency to carry out his duties. No previous issues had arisen. They met on the 6th March 2012 where the claimant informed MD that he was not happy. MD asked what did he want him to do. The claimant requested a redundancy payment but MD said he would not pay it. The claimant did not attend work on the 7th March 2012.
On the 27th March 2012 MD wrote to the claimant requesting his attendance at a disciplinary meeting on the 5th April 2012 and informed him as he had not attended work on the 7th March 2012 he was on paid suspension until the outcome of the matter was completed.
On the 3rd April 2012 the claimant responded to the letter and the agenda he had received in respect of the meeting to be held on the 5th April 2012. He contended that considering the agenda contained thirty-four allegations concerning his performance he felt that according to fair procedure and natural justice he should be requested to attend an investigatory meeting first to establish as to whether there were sufficient grounds to conduct a disciplinary meeting. He did not attend the meeting.
Claimant’s Position:
The claimant contends there was no conversation between MD and himself on the 1st March 2012. The claimant contends the MD asked him to set up another company with him.
On the 6th March 2012 MD told him he was “finished” and requested the company laptop back. MD also requested to look inside his personal bag. He went out to his jeep and MD followed him. MD told him he did not want to see him the following day. He drove off. MD rang him and asked to meet him. They met and MD told him he could resign or improve himself. MD took the laptop back. The claimant told the Tribunal that he felt he was “finished up”. He went home and switched off his phone.
He told the Tribunal that he had not requested a redundancy payment. He had been given three options by MD. They were to improve his work, take redundancy or “fight it out”. The claimant told the Tribunal found that his position became so untenable that he could not return to work and found himself constructively dismissed.
The claimant gave evidence of loss.
When asked he said he had carried out other work for other people.
Respondent’s Position:
MD stated there had been a decline in work and two employees had been made redundant. He and the claimant had had a good working relationship. There had been numerous conversations regarding work from October 2011 as various tasks had not been carried out. He met the claimant on the 1st March 2012 and gave him a written warning.
On the 6th March 2012 he met the claimant and he gave him three options (as set out above). MD told the Tribunal that the position had not been made redundant. He had not dismissed the claimant.
In respect of the company laptop he stated he had asked the claimant to leave it after the initial meeting but he had taken it with him. He did meet up with the claimant later and retrieved the laptop.
Determination:
The Tribunal have carefully considered the evidence and submission adduced in this case. The Tribunal finds no fair procedures were carried out in this matter and the claimant found himself constructively dismissed. However, the Tribunal finds the claimant did not fully mitigate his loss.
Accordingly the Tribunal awards the sum of € 5,076.00 under the Unfair Dismissals Acts, 1977 to 2007.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 is dismissed.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)