EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Employee - claimant UD1896/2011
Against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr M. Gilvarry
Members: Mr. D. Morrison
Ms. A. Moore
heard this claim at Sligo on 16th April 2013
Representation:
Claimant: Mr Vernon Hegarty, Membership Information & Support Centre,
SIPTU, 5th Floor, Liberty Hall, Dublin 1
Respondent: Mr Padraig O’Grady, IBEC,
Floor 3, Pier 1, Quay Street, Donegal Town, Co Donegal
The determination of the Tribunal was as follows:-
Summary of Evidence
The claimant commenced employment in September 1996. In 2000 his then employer sold the business and it was later taken over by the respondent. The business operated as an oil distributor and as a service station. The claimant was employed at the service station performing general administration work and dealing with customers on a regular basis. Following a period of sick leave the claimant returned to work at first on a part time basis with a view to returning full time when medically fit. He was unable to perform any heavy lifting duties which included lifting bags of coal into customers’ cars. He began to notice a change in attitude towards him shortly after his return. A new office manager was in place and he was no longer to assist customers refuelling. He began keeping a diary in 2009. A diary entry for the 8 November 2010 was opened to the Tribunal. He became more and more isolated in the work place and other employees whom he previously had chat and banter with ignored and excluded him. The respondent would call to the site and regularly ignored him. A diary entry for the 29 December 2010 was read into evidence. On that occasion he received a verbal warning and described being brought to tears and feeling useless. At a meeting with the respondent he was accused of not informing anyone that he was not working on the bank holiday. The claimant had however informed the manager. He finished his shift that day and returned the following day. He was asked to leave the counter that day. As a result he attended his doctor who certified him out of work. Later in January 2011 he felt well enough to return to work and made attempts to contact the respondent to arrange his return date. He sought assistance from his union and a letter dated the 26 January 2011 from the union to the respondent was opened to the Tribunal. The respondent never replied to that letter and did not recognise the union as the company was a non-union employer. Subsequent letters were read into evidence. He recalled telephoning the respondent on two separate occasions in and around the 7 January 2011. Having no success getting a response he instructed his union to end his employment. He described having loved and enjoyed his work. The feelings of exclusion, being undermined and ignored were all issues he wanted resolved by discussing with his employer however the employer refused to engage in any meaningful way which eventually led to his decision to end his employment. The claimant denied his use of headphones in the workplace lead to his exclusion. He began to use his headphones to distract him from the feeling of exclusion at work and only ever used one headphone. The respondent first raised having a problem with the use of headphones with him on the 29 December 2010. The claimant believes that the difficulty with the employer commenced when he informed him that he was unable to do heavy lifting such as lifting bags of coal. He resigned from his employment on the 3 March 2011.
The respondent described having a good working relationship with the claimant. He was always a good worker, punctual and honest. He appointed a manager to the service station and did not have much of a hands on role at the site where the claimant was employed. The service station is a busy garage forecourt involving interaction with customers. The job included operating a till and the use of headphones in such an environment was not acceptable. He recalled informing the claimant on many occasions that the use of headphones was not acceptable but could not recall precise dates and times of the conversations. The witness told the Tribunal that the claimant requested a redundancy package in and around May 2009 at a time when pay cuts were implemented. This request was repeated on 29 December 2010. He offered the claimant a stock control manager position including training which the claimant refused. He was unaware of the claimant’s feelings of exclusion and unaware the work environment was causing the claimant any stress. He denied deliberately ignoring the employee and was saddened by the claimant’s evidence to the Tribunal. He only interacted with staff on need to need basis and regrets that the claimant did not come to him with his grievance. The respondent recalled the meeting of the 29 December 2010 and explained that the only discussion had related to the stock control position. He recalled the claimant saying that other employees ignored him at work and later followed that up with the employees in question. They explained that the claimant wore headphones all day making it impossible to engage in any communications throughout the shift. The respondent denied he issued any verbal warning to the claimant at that meeting on the 29 December. He accepted that he did not respond to letters from a union representing the claimant and his failure to communicate further was due to the fact the claimant was out sick suffering from stress. The respondent accepted that he had taken over as the employer in 2005 and that the claimant started wearing headphones in late 2008 or 2009.
Determination:
The Tribunal has carefully considered the evidence and arguments made in this case.
The Tribunal preferred the evidence of the claimant and was not convinced by the evidence on behalf of the respondent.
The claimant was badly treated by the respondent and there were no proper internal procedures for him to follow to resolve matters without recourse to an outside body. The respondent’s actions, inter alia, in failing to take action over the claimant’s exclusion by other members of the workforce and the issuing of an unjustified verbal warning were unreasonable and the claimant was ultimately left with no option but to resign from his employment.
The Tribunal unanimously finds that the claimant was dismissed and that dismissal was unfair. In the circumstances of the case the Tribunal unanimously determines that compensation is the appropriate remedy.
Dissenting Opinion (in relation to quantum)
The following is Mr. Morrison’s dissenting opinion relating to quantum of compensation.
While I accept that financial loss consists of more than actual loss, in this case the Tribunal heard no evidence from the claimant of estimated future loss of income, no evidence of pension losses, or no evidence of loss of rights under the Redundancy Payments Acts, 1967 to 2007. In the circumstances financial loss in this case consists of actual loss which in total is eight weeks wages.
I disagree with the amount of compensation awarded for the following reason. When the claimant became available for work his own evidence to the Tribunal was that he made no attempt to obtain work in that period, therefore he failed to make any attempt to mitigate his loss. Therefore, in my opinion it is fair and reasonable to deduct 25% of the total loss. I award €2865.00 representing six weeks wages taking into account the claimant’s loss and lack of mitigation thereof.
Majority Determination relating to quantum of compensation
While the claimant was unavailable for work for a considerable period of time, the calculation of financial loss in reaching a determination of the appropriate figure of compensation is not limited to weekly wages.
Financial loss can consist of a) actual loss i.e. loss of net income between the date of the dismissal and the hearing or decision, b) estimated future loss of income (extending as far forward into the future as the Tribunal considers reasonable) c) pension losses and d) loss of rights under the Redundancy Payments Acts 1967 to 2007. Such loss can be explicitly claimed or inferred from the evidence heard. The compensation for total loss under these headings is of course subject to the cap of 104 weeks remuneration.
The Tribunal is not limited to a mere arithmetical calculation of loss of weekly wages during the time period between the date of dismissal and the date of hearing of the claim.
In relation to the amount of compensation to be awarded, the Tribunal by a majority determines that the appropriate figure is €3,820 representing eight weeks wages, having taken into account the claimant’s failure to mitigate his loss.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)