EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Joe Rourke – claimant UD34/2012
against
Ann Blackwell Associates Limited – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden BL
Members: Mr L. Tobin
Mr M. Maher
heard this claim at Dublin on 7th May and 26th November 2013
Representation:
Claimant: In person
Respondent: In person
The determination of the Tribunal was as follows:-
The fact of dismissal was in dispute.
Background
The respondent is an architect and for many years she ran a very vibrant and successful practice, with a mixture of private and public clients. The claimant, who is also an architect, first worked for the respondent for a short time beginning in 2001. At that time the business was growing and the age profile of the staff resulted in easy integration of new comers and frequent parties. When the claimant took up a permanent post with the respondent in 2006, the atmosphere had changed. The business and the staff had matured. There was more complexity, more IT and more administration. The claimant had more responsibility in particular for keeping projects within budget.
The practice suffered a serious decline in business as a result of the problems with the construction industry. The claimant felt insecure in his position and asked the respondent for a copy of this terms and conditions of employment. She contacted a firm of HR consultants but at that stage her business could not support their fees. The claimant complained to the Health & Safety Authority about the respondent’s inadequate bullying and harassment policies. His complaint was not upheld.
As the economic difficulties deepened the claimant faced increased troubles at work. He felt that two of his architect colleagues united to put him at a disadvantage. They interfered with his work and in his view used their closer relationship with the respondent to obtain preferential access to equipment needed for site work and to office supplies. From this time also the office administrator was regularly rude and uncooperative towards the claimant.
In November 2010, while the respondent was on holidays, there was an altercation in the office. The claimant, his two colleagues and office staff were involved. When she returned to work the respondent engaged a third party to investigate and resolve the issue. The investigator interviewed the office staff and the two colleagues and he exchanged emails with the claimant. However the claimant complained to the respondent about the investigator and he withdrew. A second investigator was engaged.
On 3rd February 2011 there was a further incident. The respondent suspended the claimant with pay pending investigation. The respondent’s solicitor was dealing with the investigation into the second incident. At this time the respondent was struggling to save her business. Keeping the business afloat was her primary focus. Soon after his suspension the claimant went on certified sick leave. The claimant was certified fit to return to work on 26th April 2011. There was correspondence between the respondent’s then solicitor and the claimant’s then solicitor but the matter remained unresolved.
Respondent’s Case
After the claimant was suspended an investigation meeting was arranged for 23rd February 2011 but the claimant was not available. Ultimately no investigation meeting was convened. The claimant wrote to the respondent on 30th June 2011 outlining his grievances and requesting to be put back on her payroll with immediate effect.
However, on 13th July 2011 social welfare phoned the respondent in connection with the claimant’s application for benefits. Following this call the respondent assumed that the claimant had terminated his employment.
The matter remained in abeyance while the respondent tried, unsuccessfully in the end, to keep her business afloat.
In January 2012 the claimant lodged his claim for unfair dismiss with the Tribunal.
Claimant’s Case
The claimant asked the Tribunal to extend the time within which he could lodge his claim for unfair dismissal. He had health issues following his dismissal and also he was resident in Brazil and had been unable to fax his claim to the Tribunal.
A former colleague told the Tribunal that following the incident of 3rd February 2011 in the office the respondent asked the former colleague for a statement. She later asked him for a revised statement with more information despite his having reported the incident as he had seen it.
The claimant gave evidence. He originally worked for the respondent from 2001 to 2002. He made many friends. The employees were young and worked well together. The respondent never needed a formal process to recruit staff she recruited through contacts.
In 2006 the claimant returned to work with the respondent. The atmosphere was different, the work was more complicated, there was more IT and the staff members were older and more experienced. During 08/09 his responsibilities grew he had more IT work and he was also working on keeping projects within budget. The downturn in the economy resulted in reduced wages and late payments. However the respondent had cash rich clients and despite the difficulties the respondent kept going.
The claimant was on sick leave for about 6 months due to a broken leg until May 2010. Two administrative employees were constantly unpleasant and disparaging to him. The atmosphere in the office was tense and strained and the helpful and cooperative culture had vanished. The claimant felt that he was being denied the resources he needed to do his job. He was denied cameras and he was denied printers and there were problems with ordering paper for the printers.
The claimant and two architects also employed by the respondent had a loud argument towards the end of the working day on 9th November 2010. It began over a phone call but the claimant was deeply upset when one of his colleagues accused him of not doing much work. The claimant made a formal complaint to the respondent and also complained about his difficulty with getting the use of the office camera. On 25th November 2010 was very annoyed to find 3 non-functioning cameras had been left on his desk. The claimant thought it likely that one of the administrative staff had left the cameras on his desk to annoy him.
The claimant initially cooperated with the investigator, brought in by the respondent. Later the claimant complained about the investigator to the respondent because he objected to the investigator sending him emails outside of office hours. Also the investigator was not always available to take phone calls from the claimant. The claimant was reluctant to meet the investigator unless he could sit at a table due to a medical condition. The investigator withdrew from the investigation. The respondent arranged for a solicitor to take over the investigation.
On 3rd February 2011 there was a row in the office that led to the claimant’s suspension from work. One of his colleagues and one of the administrative staff were dealing with the A3 printer. The claimant looked after IT so he asked what the problem was. His colleague started talking about the issues that the claimant had raised earlier with the respondent. The claimant was agitated by the thought that his emails had been seen by a third party. At this point 4 people were talking to him together. The claimant went to leave the room and the administrative staff member pushed the door into his face. The claimant called the Gardaí. The Gardaí took statements but no action followed.
The claimant was suspended on full pay pending an investigation. Later he was certified medically unfit for work. No investigation occurred during the claimant’s sick leave. He wrote to the respondent asking to be returned to the payroll. He had health issues that made it difficult for him to deal with the matter. He claimed social welfare payments because he needed the income. The claimant had not returned to work for the respondent. The claimant did find work for a short period in Brazil.
Determination
The Tribunal carefully considered a substantial amount of evidence adduced over the two days of the hearing. On the issue of the statutory time for making a claim to the Tribunal, the Tribunal accepts the termination date given by the respondent of 13th July 2011 and on that basis the T1A form lodged by the claimant falls within the prescribed time. Therefore the Tribunal has jurisdiction to hear this claim.
Clearly there was a breakdown in communication between the respondent and the claimant following his suspension. The respondent instructed her legal representative to negotiate with the claimant’s legal representative to wind up the claimant’s employment. The negotiations lapsed when the claimant ceased to engage with the process. The Tribunal is satisfied that the claimant’s employment did not terminate by reason of dismissal and as a result there is no issue of whether dismissal was unfair or not. The claim under the Unfair Dismissals Acts 1977 to 2007 is dismissed
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)