EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Employee - claimant UD896/2012
Against
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Browne
Mr A. Butler
heard this claim at Carlow on 2nd December 2013.
Representation:
Claimant: Mr Robert Ashe, Solicitor, 5/6 Pollerton Road,
Carlow
Respondent: In person
The determination of the Tribunal was as follows:-
Respondent’s Case:
The respondent is engaged in drain cleaning and is a family run business. Much of the respondent’s work is sourced from the local Council. The claimant was employed as a drain technician and commenced employment in April 2000. He was related by marriage to the respondent (ML) and ML treated the claimant as his right hand man. He was looked after very well in the company. He was reliable and a very good worker. In the boom years when business was good ML was able to keep two holding trucks on the road. He also had a small truck. BM was also employed by the company and MM worked odd Saturdays. The claimant walked out of the company on several occasions but always returned. He constantly raised his concerns regarding his overtime rate of pay with ML. He believed he was not being paid the correct rate for overtime. The claimant was not obliged to work overtime. He was given bonuses every Christmas.
The business began to suffer due to the down turn in the economy. Turnover dropped from €900,000 to €417,000. ML often told the claimant that if things did not pick up he would have to make him redundant. ML kept the claimant on as long as he could. On 5th September 2011 ML informed the claimant that he was making him redundant and that he would pay him his redundancy entitlement and all other monies owning to him. The claimant was subsequently paid all his entitlements. BM was placed on a three day week. It came to ML’s attention that the claimant had informed some of the respondent’s customers the he had to fight for his redundancy. ML found this to be unforgiveable. As a result the respondent lost business over this.
ML became ill after the claimant’s employment was terminated and MM was employed six weeks later to help BM on his truck. ML had been working previously with BM.
The claimant has not been replaced in his role.
Claimant’s Case:
The claimant commenced employment on 4th April 2000. He was reliable and available 24/7. He received bonuses from the respondent at Christmas time. On 5th September 2011 the claimant approached ML to discuss his overtime hourly rate of pay. He had concerns that the rate he was being paid for overtime was incorrect. ML became very annoyed with him and said “f…. you, f… the overtime, I’m letting you off”. The claimant was told to finish and that his money would be sent to him. He secured alternative work in Dublin the week he finished work but had to pay his own travel expenses. He wanted to keep in contact with the respondent’s customers so texted them his new personal mobile number.
On one occasion he had an argument with BM and left but subsequently returned to work. MM worked the odd day with him. The claimant contended that work was available in the company and that it was not a genuine redundancy. He could not talk to ML about the matter.
He had told one customer that he was unsure if he would receive his redundancy payment following the termination of his employment but said if he had to fight for it he would. As far as the claimant was concerned he believed he was fired. He was prepared to stay on in the company and would have taken a drop in his hourly rate of pay. He was not given the opportunity to discuss matters.
Determination:
This matter came before the Tribunal by way of a claim for unfair dismissal. The Respondent Company accepted that the Claimant has been dismissed but asserted that this was the result of a legitimate Redundancy. The fact of dismissal not being in issue the onus was on the Respondent Company to satisfy the Tribunal that the Claimant had not been unfairly dismissed.
There was a significant conflict in evidence between the Parties on a number of fundamental issues. Specifically, there was complete disagreement between the Parties as to the nature of the discussion between ML and the Claimant in the former’s Office on the 5th of September 2011. ML for the Respondent Company described a brief meeting in which the circumstances of the Claimant’s proposed redundancy were explained to him, whereas, the Claimant described a similarly brief meeting where he was effectively dismissed without cause.
It was impossible for the Tribunal to reconcile the two different accounts of the exchange on the 5th of September 2011 and there was no independent or circumstantial evidence to support either version.
There were issues before the Tribunal pertaining to the Claimant’s actions after the termination of his employment which were proffered to the Tribunal as a reason for not offering the Claimant the position of ‘helper’ which the Respondent Company claimed had opened up after 5th of September 2011 and before the 24th October 2011.
The Tribunal was influenced by the uncontested evidence that a Third Party had done the occasional day’s work for the Company prior to the Claimant’s dismissal, had passed his driving test not long before the termination of the Claimant’s employment, was given a Contract of Employment on the 24th October 2011 and was seen by the Claimant himself driving the vehicle normally driven by the Claimant shortly after the Claimant losing his job. It was also noted that the rate of pay of this worker was considerably lower than the Claimant’s.
Irreconcilable with the position adopted by the Company that the Claimant’s position was redundant on the 5th of September 2011 was the fact that, in the week immediately preceding the termination of his employment, the Claimant actually worked 27 hours overtime.
The Tribunal heard no evidence of prior consultation with the Claimant, no evidence of any meaningful discussion between the parties and no evidence that any alternatives other than termination were considered.
Considering the totality of the evidence before the Tribunal the documentation submitted and representations made, the Tribunal is of the view that the Respondent Company has failed to discharge the onus on it to satisfy the Tribunal that the Claimant’s dismissal was fair, whether by way of redundancy or otherwise.
The claim for compensation for Unfair Dismissal succeeds. Considering that the Claimant has already received a sum of €14,448 (paid as redundancy) the Tribunal awards the Claimant an additional sum of €7,500 by way of compensation under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)