UD906/2012, RP711/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                 CASE NO.

                                                                                                                        UD906/12

Employee        -           claimant                                                                       RP711/12                                                                                                                  

Against

Employer         -           Respondent

Under

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

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 3rd December 2013

Representation:

Claimant:         Ms Sandra Murphy, Clarke Jeffers, Dublin Street, Carlow

Respondent:    In person

The determination of the Tribunal was as follows:-

Respondent’s Case:

The respondent is engaged in fabrication. DW is owner. The claimant commenced employment in early 2005 and was employed as a welder/fabricator. He worked on sites and was a good worker. During the boom years the respondent had 22 vans on the road and employed one hundred and forty employees.   Due to the down turn in the economy, many employees were let go and the workforce reduced to five employees, some were working a three day week, others a two day week. The workforce has now increased to fifty employees.

No disciplinary code existed in the claimant’s Contract of Employment.   The general practice in the company was two verbal warnings followed by a written warning.

The respondent had provided the claimant with the use of a van when he commenced employment. The claimant’s hours were reduced in early 2012 as the business had suffered drastically since the downturn in the construction industry. After that the claimant’s attitude towards his work changed. His behaviour became aggressive and he became unco-operative. DN often spoke to the claimant while he was on site about his behaviour and PD issued him with a verbal warning.

MOR and RD worked with the claimant on different sites. They both found the claimant very difficult to work with and he had no interest in conversing with them. He had a bad attitude towards his work and was constantly taking breaks. They tried to work as a team but found the claimant to be unco-operative. The claimant was argumentative and had no respect for tools and constantly threw the tools into the van. Both MOR and RD tried to engage with the claimant but were unsuccessful and found the situation very stressful. Separately, they spoke to the respondent about the claimant’s behaviour and were asked to furnish statements which they did.

DW invited the claimant to an investigatory meeting on 9^th May 2012 in relation to allegations against him of aggressive attitude and behaviour. In advance of that meeting the claimant had been furnished with statements from co-workers. The claimant’s behaviour was unacceptable and DW would not tolerate aggressive behaviour and the claimant was subsequently dismissed from his employment.

Claimant’s Case:

The claimant commenced employment on 5th January 2005. PD furnished him with a verbal warning in 2007 following his failure to complete a job. The claimant had not the proper tools to complete the work and had returned the following day to do so. At no time during his tenure did DW speak to him about his attitude to work.

Regarding the positioning of work tools in the van, the claimant always placed them neatly in the van. The tools used to be placed on shelves but these shelves were subsequently removed to allow for more storage.

The claimant was invited to an investigatory meeting on 9^th September 2012 in relation to allegations against him of aggressive attitude and behaviour towards his supervisors and others and his failure to carry out duties for which he was being paid to do. He only became aware during the course of that meeting that his job was in jeopardy. He was not afforded adequate time to defend himself. By letter of even date the claimant’s employment was terminated.

The claimant has secured alternative work since the termination of his employment.

Determination:

Issues arose as regards the Claimant’s performance in the Workplace.   The Respondent Company’s position is that there was a deterioration in the Claimant’s conduct which coincided with changes within the Company and more challenging times. Notwithstanding significant redundancies within the Company, the Claimant, who was valued as an employee, was retained in employment.

DW Director of the Respondent Company indicated that he spoke to the Claimant about his attitude on a number of occasions.   This was disputed by the Claimant. DW advised the Tribunal that he also received written complaints from two employees which were subsequently put in writing.   Both complainants also gave evidence to the Tribunal.

The Tribunal is not satisfied that a fair process was adhered to in dealing with the Complaints against the Claimant.   Further, the Tribunal is not satisfied that a reasonable opportunity was given to the Claimant to defend himself.   There was no evidence before the Tribunal of a progressive Disciplinary Process or that due consideration was given to the range of sanctions available to the Company.

By letter dated 4^th of May 2012 DW called on the Claimant to attend a meeting on the 9^th May to be held as part of an “investigation” into allegations against him of “Aggressive attitude and behaviour”.   This was not stated to be a Disciplinary Meeting.   The Tribunal heard little by way of evidence of a meaningful investigation of the Complaints against the Claimant. Neither was there any evidence of any effort to address matters through a Grievance Procedure nor, indeed, to consider if mediation might be availed of to repair what appears to have become a fractured relationship between the Claimant and the two complainants.

As matters transpired the meeting of the 9^th of May was conducted as a Disciplinary Meeting. The Claimant’s position is that he was not given an adequate opportunity to defend himself and that his employer’s position was that the Complaints by MOR and DR were not open to challenge and were accepted by the company.   It was only at the beginning of the meeting that DW first told him that he was in danger of losing his job. No minutes of this meeting were produced to the Tribunal and the entire process was rushed with more than an element of pre-judgement.

In this case, the onus was on the Respondent Company to satisfy the Tribunal that the dismissal was not unfair. The Tribunal is not satisfied that this onus was met. In the circumstances, the Tribunal holds that the Claimant was unfairly dismissed and awards him a sum of €9,500 by way of compensation.

As remedies under the Unfair Dismissals Acts, 1977 to 2007 and the Redundancy Payments Acts, 1967 to 2007 are mutually exclusive, the claim under the Redundancy Payments Acts, 1967 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

                 (CHAIRMAN)